New Jersey Division of Child Protection and Permanency

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5222-15T2
A-5223-15T2
NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,
Plaintiff-Respondent, APPROVED FOR PUBLICATION
v. November 22, 2016
APPELLATE DIVISION
G.S. and K.S.,
Defendants-Appellants.
______________________________
IN THE MATTER OF
A.S. and B.S., Minors.
_______________________________
Argued October 31, 2016 – Decided November 22, 2016
Before Judges Sabatino, Haas and Currier.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Monmouth
County, Docket No. FN-13-172-15.
T. Gary Mitchell, Deputy Public Defender,
argued the cause for appellants (Joseph E.
Krakora, Public Defender, attorney; Mr.
Mitchell, of counsel and on the briefs).
Deirdre A. Carver, Deputy Attorney General,
argued the cause for respondent (Christopher
S. Porrino, Attorney General, attorney;
Melissa H. Raksa, Assistant Attorney General,
of counsel; Ms. Carver, on the brief).
Nancy P. Fratz, Assistant Deputy Public
Defender, argued the cause for minors A.S. and
B.S. (Joseph E. Krakora, Public Defender, Law
Guardian, attorney; Joseph F. Suozzo, Deputy
Public Defender, of counsel; Ms. Fratz, on the
brief).
Theodore T. Reilly argued the cause for amicus
curiae New Jersey State Bar Association (New
Jersey State Bar Association, attorneys;
Thomas H. Prol, of counsel; Christopher J.
Carey, Mr. Reilly and Dina M. Mikulka, on the
brief).
The opinion of the court was delivered by
SABATINO, P.J.A.D.
On leave granted, we review the Family Part's series of orders
that concern the potential need to disqualify one or both staff
attorneys from the Office of Parental Representation ("the OPR")
who respectively represent the father and the mother in defending
this child welfare case. The pertinent conflict-of-interest
questions now before us were prompted by co-defendants' advocacy
of competing parenting plans for the future care of their twin
children.
The issues presented are of first impression. In particular,
we examine under the applicable Rules of Professional
Responsibility ("RPCs") and case law: (1) whether an actual or
potential conflict of interest arises when staff attorneys from
the same OPR regional office each represent a parent having
interests or positions divergent from that of the other parent;
(2) any such conflicts may be waived by the clients, and, if so,
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in what manner; and (3) what is the appropriate role of the court
in dealing with such representational issues when they surface.
For the reasons that follow, we affirm, with some
modification, the trial judge's determination to conduct a hearing
to explore the conflict and waiver issues that arose in this
particular case.
We agree with the OPR, the Office of Law Guardian ("the OLG"
or "the Law Guardian"), and the amicus New Jersey State Bar
Association that, with appropriate screening measures, the law
does not categorically prohibit or even presumptively disfavor
staff attorneys working out of the same OPR regional office from
separately defending individual parents in a Title Nine or Title
Thirty case. In addition, when a significant divergence arises
between the parents during the course of such litigation, the
actual or potential conflict often may be mutually waivable by
those clients, with appropriate consultation with counsel and
substantiation of that waiver.
We also conclude that the trial court has a proper
institutional role in assuring that the zealous independence of
the staff attorneys will not be compromised, and that the
confidentiality of client communications and attorney work product
will be scrupulously maintained. The court retains the authority
and discretion to conduct a hearing to explore such matters on a
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case-by-case basis to address specific instances where
particularized concerns have arisen about the propriety of ongoing
representation by the staff attorneys or the sufficiency of any
client waivers and screening measures.
Lastly, we recommend that the representational issues
presented here be prospectively examined in a broader context by
the Family Practice Committee or some other designated Supreme
Court Committee. Such review may include the potential drafting
of a provision in Part V of the Rules of Court to address these
circumstances. If adopted, those new rules might replicate some,
if not all, of the facets applicable to dual representation by
staff attorney public defenders in criminal cases under the
principles expressed in State v. Bell, 90 N.J. 163 (1982) and the
possibly analogous procedures set forth in Rule 3:8-2.
I.
Background of the Parties and This Litigation
Defendants are the parents of twins, A.S. and B.S., born in
December 2012. Defendants entered into an agreement in 2013 to
share joint legal custody of the children. Defendant G.S., the
mother, was designated as the primary residential custodian, and
defendant K.S., the father, who had more recently become involved
in the twins' lives, was afforded visitation with them supervised
by G.S.
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In 2014 the Division of Child Protection and Permanency ("the
Division") received two referrals concerning these children: (1)
a report of a July 2014 domestic violence incident between
defendants, which allegedly occurred in the presence of the
children and resulted in G.S.'s arrest for simple assault of K.S.;
and (2) a report that G.S. had been arrested in October 2014 for
engaging in shoplifting while the children were in her company.
Defendants claimed they were no longer in a relationship at that
time. They both denied having a history of substance abuse or
domestic violence. The Division found the allegations were not
established and at that point closed the case.
On January 29, 2015, the Division received a third referral
concerning this family, this time from the twins' paternal
grandmother. She reported that the children had been left in her
care ten days earlier, when defendants, who she claimed were using
heroin, had been involved in a physical altercation. The
Division's ensuing investigation revealed to it that during an
argument in the children's presence, G.S. accused K.S. of stealing
her phone, broke the top off of a glass bottle, and then stabbed
K.S. in the arm.
G.S. was consequently charged with committing aggravated
assault with a weapon as an act of domestic violence. K.S. stated
to the Division that G.S. was a heroin addict. He denied using
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heroin himself, but admitted to using Xanax and Percocet. G.S.,
meanwhile, denied using heroin. She did not believe that K.S.,
who had used heroin in the past, was currently using it because
he had "completed detox." Drug screens conducted on January 30,
2015 revealed that G.S. tested positive for opiates and morphine,
and that K.S. tested positive for opiates, morphine, and oxycodone.
G.S. later admitted to using heroin.
On February 5, 2015, the Division performed an emergency (or
"Dodd" removal1) of the children from defendants' care, based on
G.S.'s admission to using ten bags of heroin a day; K.S.'s
admission of misusing prescription medication; and both parents
having tested positive for opiates and morphine. At the request
of G.S., the children were placed by the Division with their
maternal aunt, in whose care they remain to date. The Division
located K.S. later that night, who said at that time he "hoped
that the children could be with their maternal aunt."
Four days later, the Division filed an order to show cause
and a verified complaint in the Family Part seeking the care,
custody, and supervision of the children under Title Nine, N.J.S.A.
9:6-8.21 to -8.73 (regarding abuse and neglect), and also under
1
A "Dodd removal" refers to the emergency removal of a child
without a court order, pursuant to the Dodd Act, N.J.S.A. 9:6-8.21
to -8.82. N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J.
17, 26 n.11 (2011).
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Title Thirty, N.J.S.A. 30:4C-12 (regarding the care and
supervision of children). The application was mainly based on
defendants having tested positive for opiates and morphine and
their admitted drug use.
The OPR assigned two deputy public defenders from the same
regional field office, OPR-Central, to represent G.S. and K.S. at
the initial court hearing. As we will discuss infra, there are
currently eight regional OPR offices that cover the State's twenty-
one counties. 2 The OPR-Central regional office handles cases
arising in Middlesex and Monmouth counties.
According to her certification filed with the Family Part
after the concerns about potential conflicts in this case arose,
the staff attorney assigned to represent the father specifically
informed him before the initial post-removal hearing in February
2015 that there were safeguards within the OPR office, described
in more detail infra, to "ensure confidentiality for each client."
The staff attorney further advised K.S. that a "process of review"
had been undertaken to determine whether a potential for conflict
existed. She explained to K.S. that the trial court "would likely
question him regarding his understanding of any possible conflict
of interest," stemming from the fact that two staff attorneys from
2
See Office of the Public Defender, Regional Office of Parental
Representation Offices, http://www.nj.gov/defender/regional/#3
(last visited November 16, 2016).
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the same OPR office had been assigned to represent different
clients in the case. According to the attorney's certification,
K.S. responded that he understood her disclosures, and said that
he wanted her to represent him. There is no indication in our
record that K.S. signed a written waiver of a potential conflict,
or that his assent was otherwise documented in any manner, aside
from his signing the generic Public Defender application form.
The certification filed by the OPR staff attorney for the
mother did not address whether she had made similar representations
about the potential for conflict to G.S. at the outset of the
case. However, as a separate certification from OPR-Central's
managing attorney attests, the OPR has a standard protocol
regarding the assignment of staff attorneys to co-defendants in
the same case, and the protocol was followed here. As part of
that protocol, which we discuss more extensively, infra, the OPR
staff attorneys are required at the outset of each case to evaluate
whether it presents a potential conflict of interest that could
result in a significant likelihood of prejudice to either or both
defendants. In any event, the two assigned OPR staff attorneys
have separately and continuously represented K.S. and G.S. since
the inception of this case in February 2015.
At the conclusion of the February 9, 2015 hearing, the trial
court found that the Division's emergency removal was required due
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to imminent danger to the children's lives based on defendants'
substance abuse, but not domestic violence. The court issued an
order to show cause granting the Division care, custody, and
supervision of the children and awarding defendants supervised
visitation. The court further ordered: defendants to submit to
substance abuse evaluations; G.S. to attend inpatient substance
abuse treatment; the Division to find a suitable domestic violence
program for G.S.; and K.S. to meet with the Division's domestic
violence liaison. Defendants consented to the Title Nine removal
of the twins and agreed to the court-ordered services.
During a compliance review hearing in September 2015, the
Division withdrew its Title Nine abuse and neglect claim against
defendants because it found that the allegations were "not
established." By order entered on that date, G.S. and K.S.
consented to the continuing jurisdiction of the court for the
provision of substance abuse services pursuant to N.J.S.A. 30:4C-
12. G.S. singularly was ordered to engage in a batterer's
intervention program. G.S. subsequently received substance abuse
treatment, but she unfortunately relapsed.
The Parents' Divergent Permanency Plans
On February 1, 2016, after the children had been in placement
with the maternal aunt for twelve months, a permanency hearing was
scheduled before the Family Part in accordance with N.J.S.A. 30:4C-
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61.2(a)(2). The Division requested that the permanency goal change
from reunification to Kinship Legal Guardianship ("KLG") with the
maternal aunt pursuant to N.J.S.A. 30:4C-90. The staff attorney
for G.S. represented to the court that her client, who was not
present in court that day because she had been incarcerated on a
separate offense, agreed with that goal and opposed reunification
of the twins with K.S. Meanwhile, K.S., who was present in court
that day and who was pursuing substance abuse treatment, disagreed
with the mother's position. According to the representations of
his own staff attorney, K.S. sought a goal of reunification of the
twins with him once he obtained a stable residence.
The Law Guardian requested a three-month extension to afford
K.S. an opportunity to present an appropriate permanency plan.
The Law Guardian noted to the court that the children "very much
enjoy[ed]" their visits with their father, which were apparently
conducted at the paternal grandmother's house. The trial judge
agreed with the request, issuing an order on that date granting a
permanency plan extension of one month to enable K.S. to find
suitable housing and continue his substance abuse treatment.
The Conflicts Issue Identified and Addressed
At the conclusion of the February 1 hearing, the trial judge
sua sponte raised the issue of whether a potential for prejudicial
conflict existed because the parents had submitted competing
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permanency plans. The staff attorneys responded that they did not
think there was a conflict, but agreed to speak to their managing
attorney about it. Consequently, in the permanency order issued
that day, the judge directed the parties to submit briefs on the
conflicts issue.
Later that same day, G.S.'s attorney discussed the judge's
concerns with her client. According to her certification, she
explained to G.S. that she could continue to provide G.S. with
independent legal representation, and advocate for her position
notwithstanding that another attorney from OPR-Central would seek
a different outcome for K.S., and that each attorney operated
independently and would protect client confidences. There is no
indication in our record that G.S. executed a written conflicts
waiver. Nor does the record contain a conflicts waiver signed by
K.S.
The trial judge conducted an initial oral argument on the
conflicts issue on February 25, 2016. The staff attorneys argued
that they should be permitted to continue representing each of the
parents because there was no per se conflict of interest as a
result of their representation. They further asserted that under
analogous principles in Bell, supra, 90 N.J. at 173, the OPR was
responsible for making the determination of whether there was an
actual or potential conflict. The staff attorneys argued that the
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OPR's conflict assessment was subject to "substantial deference"
by the court, and was not appropriate for judicial review because
it would involve the consideration of potentially privileged
communications. Counsel admitted that they did not know what
decision-making process was used by the OPR in determining whether
to assign outside pool attorneys in multiple-representation cases.
The Division and Law Guardian took no position at that time, except
the Division argued that if the court found a conflict, defendants
should be required to place any waiver of that conflict on the
record.
In a written decision issued on March 17, 2016, the trial
judge found that there was an actual conflict of interest between
G.S. and K.S. from which prejudice would be presumed. The judge
perceived that there was "very little in the way of 'identity of
interests'" between defendants. As the judge described it, the
matter began as a result of domestic violence, and neither
defendant had shown an effort to dispel that atmosphere through
counseling. The judge further noted that defendants "initially
sought to portray the other as the one with an addiction to heroin,
while at the same time denying [his or her] own involvement."
Thereafter, K.S. showed positive results to substance abuse
treatment, but G.S. relapsed. The judge also observed that
defendants each sought at the permanency hearing to obtain a more
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favorable relationship with the children at the expense of the
other, insofar as G.S. sought a permanency goal of KLG with a
relative who could "presumably be friendlier to her," whereas K.S.
sought to have the children reunified with him, thereby controlling
G.S.'s access to the children.
As a result, the judge directed the parties, in accord with
analogous principles for criminal cases under Rule 3:8-2, to appear
at a hearing to address the apparent conflicts and whether
defendants wanted to enter a knowing and voluntary waiver. The
judge held that if both parents entered conflicts waivers, the
matter would be resolved, but if either parent did not waive, "the
court will be forced to require one or both OPR attorneys to
withdraw from the case."
Beyond this case-specific ruling, the judge announced in his
written opinion that he would institute the following procedural
framework in all cases currently on his Children-In-Court docket
where staff attorneys from the same OPR office represented co-
defendant parents:
In the future, at the outset of any case where
the Public Defender wishes to employ two OPR
staff attorneys to represent the parents, the
court will expect full compliance with State
v. Bell and R.[]3:8-2. It will expect a motion
to be made on the record seeking permission
for dual representation of the parents. It
will hear and evaluate the motion using the
same procedures it has outlined above.
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On March 22, 2016, the judge issued an order granting K.S.'s
request to adjourn the permanency hearing, which had been scheduled
for that date, "so that [the] defense may review the [March 17,
2016] Opinion and decide whether or not to ask for a stay."
Defendants moved for reconsideration of the court's March 17,
2016 ruling. Defendants argued that the court erred in applying
Rule 3:8-2 to a Family Part matter and also in its application of
Bell, supra, 90 N.J. at 173. Defendants argued that different
permanency goals, standing alone, do not constitute a prejudicial
conflict that would disqualify the public defenders from
representing defendants. Defendants also expressed concern that,
in reaching its decision, the court did not have the benefit of
reviewing the measures that have been put in place by OPR-Central
to insure that each defendant was provided with independent counsel
fully able to preserve confidences and represent his or her
client's interests.
The trial judge conducted oral argument in May 2016 on the
motion for reconsideration. The two staff attorneys appeared on
behalf of their clients. G.S. was present, but K.S. was not
because he had been hospitalized for a drug overdose. In addition,
an OPR appellate attorney appeared for the first time in the matter
to present oral argument on behalf of both defendants and offer
historical background about how the OPR shifted from a
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representation model that relied heavily on pool attorneys to a
model that now generally utilizes staff attorneys. The OPR
appellate attorney urged the court to allow the conflicts issues
to be addressed internally within the OPR, and that the court
should give substantial deference to the OPR's handling of these
issues. The Division took no position on the conflicts issues.
The Law Guardian argued that there was at least a potential for
conflict, which should be addressed as quickly as possible.
The trial judge denied the motion for reconsideration. In a
lengthy written opinion issued on June 14, 2016, the judge again
found that defendants here were "in clear conflict" from which
prejudice may be presumed. The judge rejected the OPR's contention
that a court has no further role in a conflicts matter once it is
satisfied that the "prophylactic measures" are in place and that
the staff attorneys are committed to "fidelity and independence."
The judge expressed concern that the court and the parties might
not know if such safeguards were being followed by the OPR, and
even if they were followed, the safeguards might not address every
possible conflict. For example, the judge was troubled by his
impression that the OPR does not currently have in place "a policy
to require that each staff attorney be assigned a separate
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investigator," nor would the OPR "commit to that being a
requirement in the future."3
In denying reconsideration, the judge also stated in his
opinion that he would adhere to the following protocol in all
cases where the OPR seeks to have staff attorneys from the same
office represent parents in child welfare cases. The judge's
protocol may be summarized as follows:
1. The OPR must first apply to the court at
the outset for permission to represent both
parents. During that hearing, the OPR has the
burden to: explain why it cannot follow the
"norm" set forth in Bell, supra, 90 N.J. at
174, and assign co-defendants to outside pool
counsel; and show why joint representation by
staff attorneys is the "last resort available"
to the OPR. "Joint representation" will be
denied if the OPR fails to establish either
factor.
2. If the OPR establishes the above threshold
factors, the court will then conduct a
thorough examination on the record and in the
presence of the defendants, regarding any
information indicating a real or potential
conflict between the defendants.
3. If the court is satisfied that a real or
potential conflict exists, it may seek
knowing, willing and voluntary waivers from
the defendants. If a waiver is obtained, the
court will "consider this as a part of the
overall circumstances to be evaluated on the
issue of joint representation."
3
At oral argument on appeal, the OPR appellate attorney
represented to this court that separate investigators are assigned
to the attorney for each parent, although that practice was not
documented in the trial court.
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4. If either parent does not waive the
conflict, and there is evidence of a present
conflict, the OPR will be directed to assign
pool attorneys for the parents. If only a
potential conflict has been identified, the
court will determine whether there is a
significant likelihood of prejudice such that
pool attorneys will be required. And, on
proof of no prejudice to the other parent from
allowing opposing staff attorneys to remain
in the case, the court may grant the OPR's
request.
Defendants moved again for reconsideration and other relief,
including a stay of the trial court's rulings to accommodate the
filing of a motion for leave to appeal with this court. The trial
court granted the request for a continuation of the stay in an
order on August 2, 2016. In an attached written statement of
reasons, submitted pursuant to Rule 2:5-6(c), the judge clarified
that he had not yet disqualified either of the OPR-Central staff
attorneys from representing defendants. Instead, he had only
directed counsel to appear for a hearing as to "whether the
continued representation of one or both parents by staff attorneys
from the same OPR office is warranted."
The Present Appeals
Subsequently, we granted leave to appeal to G.S. (A-5222-
15T2) and K.S. (A-5223-15T2), consolidated and accelerated those
appeals, granted defendants' application to extend the stay
pending appeal, and directed that the record shall include the
trial judge's August 2, 2016 Statement of Reasons. Because of the
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importance of the issues affecting the practice of law and a
lawyer's ethical responsibilities, we invited the New Jersey Bar
Association to appear as amicus curiae. The Bar Association kindly
accepted our invitation, filing a brief and also appearing at oral
argument. In the meantime, the permanency hearing for the children
in the trial court has been adjourned.
Although there is substantial agreement among the respective
positions taken by counsel on the appeal, the Law Guardian differs
with the position taken by defendants through the OPR appellate
attorney as to whether a hearing was warranted in this case to
explore conflict issues after the parents had advocated divergent
parenting plans. The OPR appellate attorney maintains that the
competing plans and the other circumstances here do not rise to
the level of a prejudicial conflict warranting judicial inquiry.
In any event, the OPR appellate attorney maintains that adequate
client waivers have been procured to remediate any such presumed
conflicts of interest.
The Law Guardian, however, argues that there is a sufficient
concern of potential conflict here to justify the trial court's
inquiries into the topic and its decision to order a hearing to
explore the issue. In that regard, the Law Guardian expresses
concerns that if the representation of both staff attorneys
continues without being judicially validated in some way at this
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time, the children might be disadvantaged by continued delay and
uncertainty if either or both parents claim on appeal from a final
permanency order that their trial attorney was compromised, and
the result below was thus tainted.
The Bar Association declines to take a position on whether a
hearing is justified in this case, but instead presents broader
principles relating to the assignment of defense counsel in Title
Nine and Title Thirty cases and the importance of presumptively
deferring to the professional judgment of the attorneys involved.
All three counsel who substantively briefed the appeal agree
that the principles for civil representation of parents in a Title
Nine or Title Thirty action are not identical with those in a
criminal defense context addressed in Bell and Rule 3:8-2. They
all respectfully contend that the prospective guidelines announced
by the trial court – including a demonstration at the outset of a
child welfare case that no pool attorneys are available in the
county to represent the co-defendant parents – are unwarranted.
They maintain that the OPR's general arrangement of allowing two
staff attorneys in the same office to represent these parents,
with appropriate screening, should be presumptively allowed unless
a case-specific conflict emerges. The Division and the Attorney
General continue to take no position.
II.
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The Parents' Rights to Effective Representation
Parents in New Jersey charged with civil abuse and neglect
under Title Nine or who are subject to Title Thirty termination
proceedings have a constitutional right to counsel under the due
process guarantees of Article I, paragraph 1 of the State
Constitution, and a statutory right under N.J.S.A. 9:6-8.43(a),
9:6-8.30(a), and 30:4C-15.4(a). N.J. Div. of Youth & Family Servs.
v. B.R., 192 N.J. 301, 305 (2007); N.J. Div. of Youth & Family
Servs. v. E.B., 137 N.J. 180, 186 (1994); Crist v. N.J. Div. of
Youth & Family Servs., 135 N.J. Super. 573, 576-77 n.2 (App. Div.
1975). The statutory and constitutional rights of the parent must
be "scrupulously protected." N.J. Div. of Youth & Family Servs.
v. G.M., 198 N.J. 382, 397 (2009).
A right to counsel is "the right to the effective assistance
of counsel." McMann v. Richardson, 397 U.S. 759, 771 n.14, 90 S.
Ct. 1441, 1449 n.14, 25 L. Ed. 2d 763, 773 n.14 (1970). In cases
brought against a parent by the Division, the effectiveness of
defense counsel is assessed by the two-part test set forth in
Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052,
2064, 80 L. Ed. 2d 674, 693 (1984), applicable in criminal cases.
N.J. Div. of Youth & Family Servs. v. B.H., 391 N.J. Super. 322,
345 (App. Div.), certif. denied, 192 N.J. 296 (2007). That test
examines whether (1) the attorney's performance was deficient and
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(2) whether the deficient performances actually prejudiced the
client. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064,
80 L. Ed. 2d at 693. See also RPC 1.1 (imposing on lawyers the
ethical duty of competence).
To be effective, counsel "must provide the client with
undivided loyalty and representation that is 'untrammeled and
unimpaired' by conflicting interests." State v. Norman, 151 N.J.
5, 23 (1997) (quoting State v. Bellucci, 81 N.J. 531, 538 (1980)).
"[A]n attorney hobbled by conflicting interests that so thoroughly
impede his ability to exercise single-minded loyalty on behalf of
the client cannot render the effective assistance guaranteed by
our constitution." State v. Cottle, 194 N.J. 449, 467 (2008).
Indigent parents in Title Nine and Title Thirty proceedings
are entitled to representation provided through the Office of the
Public Defender. N.J. Div. of Youth & Family Servs. v. R.D., 207
N.J. 88, 113 (2011) (citing N.J.S.A. 9:6-8.23(a),(b); N.J.S.A.
9:6-8.43(a); N.J.S.A. 30:4C-15.4). See also In re Adoption of
Child by J.E.V., 226 N.J. 90, 106 (2016) (due process guarantee
requires appointment of counsel to some indigent litigants).
"Simple justice demands nothing less in light of the magnitude of
the consequences involved." Crist, supra, 135 N.J. Super. at 575.
A child who is the subject of a Title Nine or Title Thirty
proceeding is also entitled to representation by counsel employed
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in a separate unit of the Public Defender's Office, referred to
as a "law guardian." J.B. v. W.B., 215 N.J. 305, 332 (2013)
(citing N.J.S.A. 9:6-8.21(d); N.J.S.A. 9:6-8.23; N.J.S.A. 30:4C-
15.4(b)).
History of the Public Defender and the Creation of the OPR
The Office of the Public Defender was established in 1967
under the Public Defender's Act, N.J.S.A. 2A:158A-1 to -25, to
replace "the assigned counsel system with a statewide program for
the defense of indigents at public expense." State v. Western
World, Inc., 440 N.J. Super. 175, 193-94 (App. Div. 2015), certif.
denied, 225 N.J. 221 (2016). The Public Defender was initially
required to provide representation, and all necessary services and
facilities of representation, to indigent criminal defendants
charged with an indictable offense. N.J.S.A. 2A:158A-5.
Subsequent legislation in 1974 assigned that right of
representation to abuse and neglect proceedings under Title Nine,
N.J.S.A. 9:6-8.43(a),4 and in 1999 to termination cases under Title
Thirty, N.J.S.A. 30:4C-15.4. Thereafter, the Public Defender
created the OPR, formerly known as the Parental Representation
Unit ("PRU"), to represent parents in both Title Nine and Title
4
In 1974, the responsibility for providing counsel for parents in
Title Nine cases was assigned to the then-established Department
of the Public Advocate. See Office of the Public Defender,
History, http://www.nj.gov/defender/history/ (last viewed on
November 16, 2016); E.B., supra, 137 N.J. at 186.
22
A-5222-15T2
Thirty cases.
The Public Defender is empowered to appoint deputy public
defenders, N.J.S.A. 2A:158A-6, and also to maintain and compensate
"trial pools of lawyers" on a case-by-case basis. N.J.S.A.
2A:158A-7(c),(d). Pool attorneys may be engaged "whenever needed
to meet case load demands, or to provide independent counsel to
multiple defendants whose interests may be in conflict." N.J.S.A.
2A:158A-9 (emphasis added).
All communications between the defendant clients and any
lawyers in the Public Defender's Office "shall be fully protected
by the attorney-client privilege to the same extent and degree as
though counsel has been privately engaged." N.J.S.A. 2A:158A-12.
The Public Defender's Office has the ultimate responsibility to
represent the client and is the client's attorney of record,
regardless of whether the lawyers it assigns are staff or pool
attorneys. Turner v. Dep't of Human Servs., 337 N.J. Super. 474,
478 (App. Div.), certif. denied, 168 N.J. 294 (2001).
The statutory scheme prescribes that the Public Defender is
to make selections of staff and pool attorneys "on a basis
calculated to provide the respective defendants with competent
counsel in the light of the nature, complexity and other
characteristics of the cases, the services to be performed, the
status of the matters, and other relevant factors." N.J.S.A.
23
A-5222-15T2
2A:158A-8. In selecting attorneys to serve as counsel for indigent
parents, the Public Defender's Office also must: (1) consider an
attorney's willingness to make a commitment to represent a parent;
(2) ensure that an attorney has received proper training; and (3)
provide for an internal administrative unit to supervise,
evaluate, and select non-staff counsel to represent indigent
parents independently from the Office of Law Guardian. N.J.S.A.
30:4C-15.4(c)(1)-(3). Decisions by the Public Defender concerning
the representation of parents are to be made by staff who have no
actual involvement in the day-to-day representation of children
provided by the OLG. N.J.S.A. 30:4C-15.4(c)(3).
The Post-2004 Reforms
From 1974 to the mid-2000s, the general practice in Title
Nine proceedings was for the Public Defender to assign an attorney
in the OLG to represent the child, and to assign separate pool
attorneys to represent the parents. N.J. Div. of Youth & Family
Servs. v. E.B., 264 N.J. Super. 1, 6 (App. Div. 1993), aff'd, 137
N.J. 180 (1994).5 That practice changed, however, in 2004, when,
5
Prior to an amendment in 1977, N.J.S.A. 9:6-8.21 defined an
"attorney" for an indigent parent as "a pool attorney" from the
Public Defender "appointed in order to avoid conflict between the
interests of the child and the parent[.]" L. 1974, c. 119.
N.J.S.A. 9:6-8.21 currently defines an "attorney" for an indigent
parent as "an attorney from the Office of the Public Defender or
an attorney appointed by the court who shall be appointed in order
to avoid conflict between the interests of the child and the parent
or guardian in regard to representation." (Emphasis added).
24
A-5222-15T2
as part of the State's comprehensive reform of the child welfare
system, the Public Defender transitioned from a model primarily
utilizing pool attorneys, which had received criticism, to a model
utilizing staff attorneys more often.
The State's reform plan was developed as part of a settlement
reached in a federal class action filed on behalf of children in
the Division's care.6 Among other things, the plan was designed
to improve legal representation of indigent parents. The reform
plan provided in relevant part that:
Children are represented by the Law Guardian
Unit of the . . . [Public Defender], which has
a large in-house staff. Parents are also
represented by the [Public Defender], which
has a small in-house staff for this purpose
(the parental representation unit, PRU, which
mainly handles appeals, with almost all the
trial level representation being handled by
pool private sector attorneys paid on an
hourly basis for this work.) This model
raises several concerns.
[A New Beginning: The Future of Child Welfare
in New Jersey, at 146 (June 9, 2004),
available at
http://dspace.njstatelib.org:8080
/xmlui/handle/10929/25777 (emphasis added).]
The reform plan went on to detail those concerns, including the
following criticisms of heavy reliance on pool attorneys:
[B]ecause most of the parental representation
is not institutionalized, but handled by the
individual pool attorneys, most parents are
6
See Charlie H. v. Whitman, 83 F. Supp. 2d 476 (D.N.J. 2000)
(addressing a motion to dismiss filed in the federal class action).
25
A-5222-15T2
represented by counsel without reliable access
to ongoing training, support (from paralegals,
investigators, or the like) or supervision,
which cannot but affect the quality of
parental representation. Parents are often
represented by different attorneys during the
course of their cases, undermining both the
quality of representation and the parents'
confidence in the operation of the system as
a whole, at a time of particular legal and
emotional vulnerability.
[Ibid. (emphasis added).]
In accordance with the reform plan, the Child Welfare Panel
engaged as consultants Professor Martin Guggenheim of New York
University School of Law, and Craig Levine, Senior Counsel for the
New Jersey Institute for Social Justice. These consultants
asserted in their report that the pool attorney system had
contributed to the inadequate representation of indigent parents
because the pool attorneys were often unprepared, undertrained,
underpaid, and improperly managed. Martin Guggenheim & Craig
Levine, Report to New Jersey Child Welfare Panel on the
Representation of Parents in Child Welfare Cases (May 2005) at 7-
9.7 They recommended that to the extent pool attorneys would
continue to be used in conflict cases with multiple parents, it
was important to implement a meaningful evaluative tool for their
7
Available at https://dspace.njstatelib.org/xmlui/bitstream/
handle/10929/40775/c5362005g.pdf?sequence=1&isAllowed=y (last
viewed on November 16, 2016).
26
A-5222-15T2
performance. Id. at 35. Further, they recommended that
representation be housed in separate institutions – one for so-
called "primary" and another for so-called "secondary" parents –
which might decrease the need for retaining pool attorneys. Id.
at 26-27, 35.
In a public report submitted in June 2005, the Interagency
Council for Children and Families (the "ICCF"), the agency charged
with ensuring the timely implementation of the reform plan,
described the aim of the Public Defender's transformation to a
predominantly staff-based system for the representation of
indigent parents. According to the ICCF, the transformation was
designed "both to increase the quality and accountability of legal
counsel and to ensure the presence of legal counsel for parents
from the earliest possible opportunity in a child welfare
proceeding." Interagency Council for Children & Families, Public
Report, at 3 (June 30, 2005). 8 To that end, the OPR hired
additional staff attorneys, opened new offices, and hired new
investigators. Id. at 3-4. In addition, the OPR "continue[d] to
maintain a list of seasoned pool attorneys for cases with multiple
defendant parents and [to] manage such trial assignments to ensure
timely selection of legal counsel for those cases[.]" Id. at 5.
8
Available at https://dspace.njstatelib.org/xmlui/
handle/10929/30082 (last viewed on November 16, 2016).
27
A-5222-15T2
This transition from a predominantly pool attorney model to
a predominantly staff attorney model took longer than expected.
According to the OPR, the transition was not fully implemented on
a state-wide basis until September 2013.
Conflicts Protocols
Under the former system that had been in effect from 1974 to
2013, few issues of conflict-of-interest would have arisen,
because parents were then mainly represented by pool attorneys
from separate firms and children were represented by the OLG, an
entirely separate office within the Public Defender.9 "OLG and
OPR are kept administratively separate to avoid any appearance of
conflict [between counsel for children and their parents] in these
cases." Office of the Public Defender, supra, History.
The OPR recognized that under the revised system, a potential
for conflict could arise from the fact that staff attorneys from
the same OPR office can be assigned to represent co-defendant
parents. According to the Guggenheim report, approximately one-
third of the OPR's cases involve multiple parents and require the
9
Separate law guardians are also appointed if there is a conflict
of interest among the children. See, e.g., N.J. Div. of Youth &
Family Servs. v. Robert M., 347 N.J. Super. 44, 61-62, 69 (App.
Div.) (appointing four separate law guardians to children in a
termination case), certif. denied, 174 N.J. 39 (2002). Although
there are parallel issues of how best to deal with client conflicts
with respect to the Law Guardian, those issues are not posed in
this appeal, and we therefore do not address them.
28
A-5222-15T2
assignment of a second attorney. Guggenheim & Levine, supra, at
26-27. To address that concern, the OPR chose not to adopt the
"primary"/"secondary" client model suggested by Guggenheim and
Levine, but instead established protocols for staff attorneys, to
insure confidentiality and to protect independent advocacy when
they are representing parents in child welfare cases. If, however,
a determination is made that there is a potential conflict of
interest and a significant likelihood of prejudice, representation
is assigned to a pool attorney.
The record does not contain any written guidelines issued
internally by the OPR detailing the protocols for representation
by staff attorneys within the same office representing two parents
in the same case. However, the record does contain a certification
from the managing attorney of OPR-Central describing those
existing protocols. The managing attorney explained that
beginning in 2013, the OPR instituted a state-wide program of
staff attorney representation of co-defendants in civil child
welfare matters. A "critical component" of the program was to
insure that staff attorneys considered potential conflicts.
According to the managing attorney's certification, "[s]taff
attorneys were instructed to review each case at the onset and
determine if the circumstances demonstrated a potential conflict
of interest and a significant likelihood of prejudice to either
29
A-5222-15T2
or both defendants." If the staff attorney found a potential
conflict, the attorney was directed to immediately bring the case
to the managing attorney's attention for further assessment. Cases
in which a final determination was made "that a potential for
conflict exists that could result in a significant likelihood of
prejudice" were immediately reassigned to a pool attorney – a
result OPR-Central has had to use in only a "few" cases.
The managing attorney further attested that, before the
present case was filed by the Division, the following protocols
within the OPR had been "continuously implemented to insure
confidentiality and to preserve independent advocacy":
• Each staff attorney representing a co-
defendant on the same case has a separate and
distinct office and individual filing cabinets
to store case files.
• Each staff attorney representing a co-
defendant on the same case has a separate
secretary assigned and/or must undertake
his/her own administrative tasks.
• Each staff attorney representing a co-
defendant on the same case is assigned to a
separate printer located in different rooms
within the office.
• All staff and secretaries are precluded from
using the speaker phone function when speaking
with clients.
• All staff attorneys are precluded from
removing documents from the copier or fax, and
must wait for documents to be placed in
his/her mailbox by support personnel or the
manager.
30
A-5222-15T2
• All staff attorneys have been directed to
keep all files secured in cabinets and any
work product out of plain view.
• All staff attorneys have been instructed to
maintain confidentiality and independent
advocacy by insuring conversations with
colleagues regarding shared cases are limited
to general information and only to that which
is not protected by attorney client privilege.
The OPR-Central managing attorney further explained in her
certification that she sometimes has conferences with individual
staff and pool attorneys about litigation issues and strategies.
She asserted that her advice and recommendations to the attorneys
are kept confidential, and that no information she learns about
the position or strategy of a co-defendant is shared. "In
instances where staff attorneys, with the consent of their
respective clients, wish to discuss a collaborative case strategy
or shared legal question," the managing attorney "meet[s] with
both attorneys together to discuss the legal considerations
related to their collaborative strategy or shared question."
According to the managing attorney, even when such collaborative
approaches are pursued, "each attorney is expected to and does
independently advocate for his/her client" in the case.
During the motion proceedings before the trial court in this
case, the OPR appellate attorney further clarified these customary
practices in his representations to the court. He acknowledged
31
A-5222-15T2
that the OPR does not ordinarily assign staff attorneys from other
OPR offices to represent co-defendant parents in a case because
it does not have offices in every county. Because of logistical
impediments, it is difficult to assign counsel to such co-
defendants from different regional offices. Instead, the OPR
generally utilizes two staff attorneys from the same office, with
the screening protocol described in OPR-Central's managing
attorney's certification. The OPR's appellate attorney
acknowledged to the trial court that there was no "standard script"
for staff attorneys to explain to clients the risks of such
representation arrangements out of a common office.
III.
Mindful of this important history and background information,
we now address the issues raised on appeal. In essence, the issues
fall into three clusters: (1) the identification of actual or
potential conflicts arising from OPR staff attorneys within the
same office representing co-defendant parents; (2) whether such
conflicts may be waived, and, if so, how; and (3) the appropriate
role of the court. We examine them in turn.
A.
The Identification of Conflicts
The OPR, Law Guardian, and amicus in this case all agree with
the fundamental principle that it is vital to safeguard against
32
A-5222-15T2
conflicts of interest that might compromise the integrity or
quality of representation of indigent parents in defending Title
Nine and Title Thirty actions. Their arguments differ over what
precisely comprises such conflicts of interest, and over when
specifically measures must be taken to address actual or potential
conflicts.
Fundamentally, a lawyer owes his or her client the key
responsibilities of confidentiality and loyalty. In re Op. No.
653 of the Advisory Comm. on Prof'l Ethics, 132 N.J. 124, 129
(1993). From that duty "issues the prohibition against
representing clients with conflicting interests." Ibid. "The
prohibition against lawyer conflicts of interest is intended to
assure clients that a lawyer's work will be characterized by
loyalty, vigor, and confidentiality." Restatement (Third) of the
Law Governing Lawyers § 122 comment b (2000). The risk in
representing clients with conflicting interests is that a lawyer's
divided loyalty will result in less vigorous representation of
both clients, and that the lawyer will use confidences of one
client to benefit the other. A. v. B., 158 N.J. 51, 57 (1999).
The Rules of Professional Conduct, which address conflicts
of interest, are indisputably applicable to lawyers assigned by
the Office of Public Defender in either a civil or criminal
context. N.J.S.A. 2A:158A-13; Bell, supra, 90 N.J. at 169; State
33
A-5222-15T2
v. Noel, 386 N.J. Super. 292, 297 (Law Div. 2005). Specifically
at issue here is RPC 1.7(a), a provision "rooted in the concept
that '[n]o man can serve two masters[.]'" State ex rel. S.G., 175
N.J. 132, 139 (2003) (quoting Raymond L. Wise, Legal Ethics 272-
73 (1970)). RPC 1.7(a) prescribes:
[A] lawyer shall not represent a client if the
representation involves a concurrent conflict
of interest. A concurrent conflict of
interest exists if:
(1) the representation of one client will be
directly adverse to another client; or
(2) there is a significant risk that the
representation of one or more clients will be
materially limited by the lawyer's
responsibilities to another client, a former
client, or a third person or by a personal
interest of the lawyer.[10]
Hence, pursuant to RPC 1.7(a)(1), one lawyer cannot represent
multiple clients with "directly" conflicting interests or
interests that "materially limit" the lawyer's advocacy. A
10
Our Supreme Court largely adopted, with certain modifications,
the ABA Model Rules of Professional Conduct in 1984 "'to harmonize
New Jersey's standards with the Model Rules and to provide clear,
enforceable standards of behavior for lawyers.'" In re Op. No.
17-2012 of the Advisory Comm. on Prof'l Ethics, 220 N.J. 468, 478
(2014) (quoting State v. Rue, 175 N.J. 1, 14 (2002)). Restatement
(Third) of the Law Governing Lawyers, supra, § 121, defines a
conflict of interest as arising "if there is a substantial risk
that the lawyer's representation of the client would be materially
and adversely affected by the lawyer's own interests or by the
lawyer's duties to another current client, a former client, or a
third person." See In re Simon, 206 N.J. 306, 316 n.5 (2011)
(citing § 121 of the Restatement).
34
A-5222-15T2
conflict of interest may thereby preclude a lawyer from
representing co-defendants.
Under RPC 1.10, such a conflict is "imputed to all members
of a law firm, disqualifying all if any one would be disqualified."
S.G., supra, 175 N.J. at 138. However, in New Jersey, public
defenders are not viewed for imputation purposes in exactly the
same manner as a law firm of attorneys. See Michels, N.J. Attorney
Ethics § 24:2-2 at 600 (2015); Bell, supra, 90 N.J. at 171; State
v. Muniz, 260 N.J. Super. 309, 314-15 (App. Div. 1992).
For the reasons we shall discuss, infra, the comparison with
private law firms is not perfect. Our courts have addressed these
conflict-of-interest concerns in the somewhat analogous context
of the representation of co-defendants in a criminal case.
For instance, in Bellucci, supra, 81 N.J. at 545, the Supreme
Court held that representation of multiple defendants in a criminal
case by a single private attorney or attorneys from the same law
firm is barred and implicates the defendants' Sixth Amendment
rights to the effective assistance of counsel "unless defendants
are fully advised of the potential problems involved." "[O]nce a
potential conflict exists, prejudice will be presumed in the
absence of waiver . . . even if associated attorneys are involved
instead of the same attorney." Id. at 543 (citing State v. Land,
73 N.J. 24, 30 (1977)). As the Court explained in Bellucci,
35
A-5222-15T2
prejudice is presumed when lawyers from the same law firm represent
criminal co-defendants because: (1) firm members have access to
confidential information; (2) the entire firm shares an economic
interest in the clients of each attorney; and (3) public confidence
in the integrity of the Bar would be eroded if conduct proscribed
by one lawyer could be performed by another lawyer in the firm.
Bellucci, supra, 81 N.J. at 541-42.
Multiple representation of defendants in criminal cases by
public defenders from the same office does not, however, "in itself
give rise to a presumption of prejudice," because the same degree
of conflict risks pertaining to private law firms does not exist.
Bell, supra, 90 N.J. at 171. The Court in Bell explained that the
Public Defender differs from private law firms because public
defenders have no financial incentive in retaining clients, and
[a]s a consequence, the public does not lose
confidence in a rule allowing attorneys in the
same office to represent joint defendants,
even though a single attorney from that office
could not handle the cases. Because "the
primary, if not the only, responsibility of
an assistant public defender is to represent
individual citizens in controversy with the
State," Branti v. Finkel, 445 U.S. 507, 519,
100 S. Ct. 1287, 1295, 63 L. Ed. 2d 574, 584
(1980), we can expect the public defenders to
withdraw from the case whenever joint
representation may prejudice their clients. A
per se rule requiring counsel from separate
offices would therefore needlessly deprive
many defendants of competent local public
defenders.
36
A-5222-15T2
[Id. at 168-69 (emphasis added).]
The Court in Bell was "satisfied that although the subtle
influences that arise from public defenders practicing side by
side in the same office may present difficulties in maintaining
absolute independence, 'the inbred adversary tendencies of [public
defense] lawyers are sufficient protection.'" Id. at 169 (quoting
People v. Robinson, 402 N.E.2d 157, 162 (Ill. 1979) (quoting ABA
Standards, The Defense Function, at 212-13 (1971))).11
For similar reasons, we conclude that there is no per se
ethical prohibition upon staff attorneys from within the same OPR
regional office representing different parents within the same
case, provided that appropriate screening measures are
scrupulously implemented. There is no need for us in these appeals
to pass upon, item-by-item, the protective measures described in
the certification of OPR-Central's managing attorney. We observe
11
See State v. Reardon, 337 N.J. Super. 324, 330 (App. Div. 2001)
(conflict of interest based on multiple representation by
attorneys from same Public Defender's Office was not supported by
record); State v. Scherzer, 301 N.J. Super. 363, 459-60 (App.
Div.) (finding no per se conflict in co-defendants represented by
public defenders), certif. denied, 151 N.J. 466 (1997); Muniz,
supra, 260 N.J. Super. at 314-15 (holding public defender not
disqualified from representing a defendant whose victim had been
represented by another public defender in the same office on
unrelated matter); State v. Rogers, 177 N.J. Super. 365, 367 (App.
Div. 1981) (holding joint representation of co-defendants by
public defenders from same office did not constitute denial of
defendants' constitutional rights to counsel), appeal dismissed,
90 N.J. 187 (1982).
37
A-5222-15T2
that they appear to be appropriately designed to safeguard client
confidences, on the whole, and to promote zealous independent
representation by the respective staff lawyers for each parent.
We do add two important points of enhancement. First, the
described protocol should be expanded to include measures to
safeguard electronically stored confidential client information
and attorney work product, in a manner conforming with the
recently-enacted subsection (f) to RPC 1.6 (eff. September 1,
2016) and the associated Official Comment issued on August 1,
2016. In this digital information age, it is vital that screening
measures not be confined to physical case files. The screening
must include the protection of electronically stored data, which,
for example, might contain confidential attorney notes on client
confidences and strategies.12
Second, we instruct the OPR to formalize its protocol with
written guidelines that are distributed to all staff and managing
attorneys, assuming they do not already exist. The OPR's appellate
attorney represented that the procedures described in the
certification of OPR-Central's managing attorney are followed in
all of the OPR's other regional offices statewide. In any event,
12
At oral argument, we were assured by the OPR's appellate attorney
that the OPR maintains separate log-in passwords for individual
attorneys so that access to sensitive computer files is limited.
Beyond this, we recommend that the OPR consider what additional
measures are warranted in light of the new RPC subsection.
38
A-5222-15T2
they ought to be promulgated internally in a more formal manner
to assure compliance.
The harder questions presented here concern identifying under
what circumstances the mere theoretical possibility for conflict
advance to a tangible, case-specific concern that warrants
scrutiny and potential corrective action. This potential was
explained by the Court in a criminal context in Bell, supra, 90
N.J. at 171-73. In that case, the Court found no conflict where,
near the end of the trial, a detective testified, without prior
disclosure, that several hours before the burglary he had seen one
of the co-defendants carrying a pair of pink pants; the pants were
later found with the stolen items. Id. at 171-72. The trial
judge overruled defense counsels' objection on the basis of
surprise. Id. at 172.
Defense counsel in Bell did not raise the conflict issue
until after cross-examination of the detective had been completed.
Ibid. The conflict claim was based on the fact that co-defendant
Bell alone, without co-defendant Peguese, was seen carrying the
pants. Ibid. "No further explanation was given as to how a
conflict had developed from this alleged dissimilarity." Ibid.
The Court held:
We fail to see the conflict. The
confidentiality of the information was not at
issue. The attorney defending Peguese was
unfettered in his ability to respond to this
39
A-5222-15T2
new information. Bell could hardly seek to
claim a tactical trial problem related to his
co-defendant. Its real burden lay not in any
conflict but in its surprise. As noted, the
trial court permitted an adjournment to allow
counsel to check out the incident but denied
a mistrial because the nondisclosure was
inadvertent. Two privately retained lawyers
would have faced the same problems of trial
tactics at that time.
At no time, either at trial or on appeal,
have defendants suggested what either trial
attorney might have done differently once the
conflict arose. Neither defendant took the
stand. Peguese's attorney stated that this
was his usual trial strategy. Contrast this
with Holloway v. Arkansas, 435 U.S. 475, 98
S. Ct. 1173, 55 L. Ed. 2d 426 (1978), where a
trial court had ordered one public defender
to represent three criminal defendants. He
could cross-examine none although their
interests differed. Cf. Glasser v. United
States, 315 U.S. 60, 62 S. Ct. 457, 86 L. Ed.
680 (1942) (attorney representing two
defendants voluntarily refrained from cross-
examining prosecution witness because of
feared adverse effect on one co-defendant).
[Bell, supra, 90 N.J. at 172-73 (emphasis
added).]
Thereafter, in a civil case, In re Petition for Review of
Opinion 552 of Advisory Committee on Professional Ethics, 102 N.J.
194 (1986), the Court held that in a Section 1983 civil rights
action, "a government attorney is precluded from representing co-
defendant government officers or employees only where the
allegations or the facts as developed present an actual conflict
of interests or the realistic possibility of such a conflict."
40
A-5222-15T2
Id. at 208 (emphasis added). "If no such conflict is presented,
then a government attorney may simultaneously represent as co-
defendants governmental officers or employees and the government
entity." Ibid. The Court cautioned, however, that "[t]his joint
representation . . . is conditioned upon the continuing obligation
of the attorney to ascertain whether there exist potential
conflicts of interests among the defendants, and if, under the
circumstances, such potential conflicting interests emerge that
outweigh the mutuality or similarity of the interests among
defendants." Id. at 208-09 (emphasis added). If that
materializes, "the attorney shall be obligated promptly to
terminate such joint representation and initiate steps for the
separate representation of the defendants." Id. at 209.
The Court explained in Opinion 552 that joint representation
of co-defendants "with potentially differing interests is
permissible provided there is a substantial identity of interests
between them in terms of defending the claims that have been
brought against all defendants. The elements of mutuality must
preponderate over the elements of incompatibility." Id. at 204.
Critical to that determination is whether co-defendants "would
present consistent defenses to the claims brought against them."
Id. at 205. Thus, "representation of multiple parties may be
permitted even if the positions may appear to be somewhat
41
A-5222-15T2
potentially conflicting." Ibid.Moreover, under the RPCs, representation of clients who are
on the same side in the same civil litigation, unlike opposing
clients with a direct conflict of interest, does not always present
a potential for a conflict of interest, and is not automatically
barred. Michels, supra, § 19:2-1(e) at 415. A disqualifying
conflict may arise in representing co-defendants "by reason of
substantial discrepancy in the parties' testimony, incompatibility
in positions in relation to an opposing party or the fact that
there are substantially different possibilities of settlement of
the claims or liabilities in question." Ibid. (quoting ABA Model
Rules of Prof'l Conduct R. 1.7 (2000)). See, e.g., Wolpaw v. Gen.
Acc. Ins. Co., 272 N.J. Super. 41, 45 (App. Div.) (requiring a
liability insurer to retain separate counsel for co-defendants
with conflicting interests), certif. denied, 137 N.J. 316 (1994).
In identifying conflicts, "[t]he critical questions are the
likelihood that a difference in interests will eventuate and, if
it does, whether it will materially interfere with the lawyer's
independent professional judgment in considering alternatives or
foreclose courses of action that reasonably should be pursued on
behalf of the client." ABA Model Rules of Prof'l Conduct, supra,
R. 1.7 comment 8.
These principles came into play in a Title Thirty case
42
A-5222-15T2
involving private representation in which a defendant father
appealed from an order terminating his parental rights. N.J. Div.
of Youth & Family Servs. v. V.K., 236 N.J. Super. 243, 249 (App.
Div. 1989), certif. denied, 121 N.J. 614, cert. denied, 495 U.S.
934, 110 S. Ct. 2178, 109 L. Ed. 2d 507 (1990). The Division
became aware of the case when the mother called a hotline because
she felt "overwhelmed" with the care of her small children. Id.
at 250. The parents had "a history of emotional instability and
inability to control their behavior," and "would not agree to
voluntary placement of the children." Ibid. The trial court
heard "extensive testimony of physical and sexual abuse of the two
children" by the co-defendant parents in the termination case.
Ibid. The parents were also tried on criminal charges of child
abuse and were acquitted. Id. at 251.
On appeal in V.K., the father argued, among other things,
that private trial counsel should not have represented both him
and his wife "as such representation constituted a conflict of
interest." Id. at 256-57. He claimed that there was "'no question
but that all of the family problems have their root'" in his wife's
alleged conduct, and that the conflict was further heightened by
the fact that he wanted the children back, while unbeknownst to
him, his wife did not. Id. at 257. The Division's attorney had
raised a possible conflict of interest concerning the co-
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defendants' private counsel representing the husband in the
related criminal matter, but the husband and wife stated at the
time that they did not believe there was a conflict of interest
and wanted common trial counsel to represent them in the civil
termination trial. Ibid.
We found no support in the record for the father's allegations
of a conflict in V.K. Without citing to Bell or RPC 1.7, we held
that "[o]ur careful review of the record reveals no conflict of
interests between appellant and his wife that would result in
prejudice to appellant. Their interests were not divergent; both
sought to establish that [the Division's] claim that they had
sexually abused their children was groundless." Ibid. (citing
United States ex rel. Smith v. New Jersey, 341 F. Supp. 268, 271
(D.N.J. 1972) (where, by comparison, the co-defendants' interests
were identical)).
More recently, in New Jersey Division of Youth & Family
Services v. N.S., 412 N.J. Super. 593, 639-40 (App. Div. 2010),
we held that there was no per se "disqualifying conflict" when
"one attorney assumes the tandem roles of counsel for the same
defendant in both a Title Nine action and criminal proceedings
arising from the abuse or neglect of a child." The concern in
allowing dual representation in that case centered on the release
of the Division's files under Rule 5:12-3. Ibid. We held that
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such dual representation by counsel may be allowed "subject to a
protective order, which preserves the confidentiality of the
source prompting the Division's protective services litigation."
Id. at 640.
These cases signify that a conflict of interest that warrants
attention in this multiple representation context is one that goes
beyond the mere fact that the clients have the status of co-
defendants in the same Title Nine or Title Thirty case. The
trigger for concern is instead whether there is a manifest
particularized divergence between the clients' factual contentions
or legal assertions,13 or the remedies they wish their counsel to
advocate. The latter concern implicates the standard of RPC 1.7,
i.e., whether the circumstances show "direct" adversity between
the clients, see RPC 1.7(a)(1), or, alternatively, whether there
is a "significant risk" that the representation of one client will
"materially limit" the advocacy of the other client represented
by a staff attorney in the same OPR office. See RPC 1.7(a)(2).
13
We refrain from using in this context the term "positional
conflict" that is used in some of the briefs on appeal. The use
of that term here is misplaced. A "positional conflict" occurs
when a lawyer takes inconsistent legal positions in different
tribunals at different times on behalf of different clients. See
ABA Model Rules of Prof'l Conduct R. 1.7 comment 24 (2000); John
S. Dzienkowski, Positional Conflicts of Interest, 71 Tex. L. Rev.
457, 460 (1993).
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The American Bar Association has provided some guidance on
this subject with specific reference to the representation of
multiple parents in abuse and neglect cases by a single attorney.
In particular, Standard 14 of the American Bar Association
Standards of Practice for Attorneys Representing Parents in Abuse
& Neglect Cases (2006) cautions that counsel should "[b]e alert
to and avoid potential conflicts of interest that would interfere
with the competent representation of the client." (Emphasis
added). By illustration, ABA Standard 14 states:
Action: The parent's attorney must not
represent both parents if their interests
differ. The attorney should generally avoid
representing both parents when there is even
a potential for conflicts of interests. In
situations involving allegations of domestic
violence the [same] attorney should never
represent both parents.
Commentary: In most cases, attorneys should
avoid representing both parents in an abuse
or neglect case. In the rare case in which
an attorney, after careful consideration of
potential conflicts, may represent both
parents, it should only be with their informed
consent. Even in cases in which there is no
apparent conflict at the beginning of the
case, conflicts may arise as the case
proceeds. If this occurs, the attorney might
be required to withdraw from representing one
or both parents. This could be difficult for
the clients and delay the case. Other
examples of potential conflicts of interest
that the attorney should avoid include
representing multiple fathers in the same case
or representing parties in a separate case who
have interests in the current case.
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In analyzing whether a conflict of interest
exists, the attorney must consider "whether
pursuing one client's objectives will prevent
the lawyer from pursuing another client’s
objectives, and whether confidentiality may be
compromised."
[Ibid. (emphasis added) (citations omitted).]
The ABA Standard does not, however, address whether such conflict
problems are ameliorated when different staff attorneys within the
same public defender's office separately represent the co-
defendant parents.
Another ABA publication has recommended that, when assigning
counsel to defend parents in child welfare claims, attorneys should
ascertain whether the parents have claims or contentions against
each other, particularly domestic violence claims. If so, then
the following questions may bear on the conflict analysis:
• Does representing one client foreclose
alternatives for the other?
• Will confidential information from Client
A be compromised in representing Client B?
• Can the lawyer comply with the duties owed
to each client, including the duty to pursue
each client's position?
• Will the client reasonably fear that the
lawyer will pursue that client's case less
effectively out of deference to the other
client?
• Can the lawyer ask for consent?
[Jennifer L. Renne, Legal Ethics in Child
Welfare Cases 49 (Amer. Bar Ass'n. 2004).]
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Although we do not necessarily adopt these five questions as
comprehensive or dispositive, they do appear to be useful points
of inquiry.
The Law Guardian rightly stresses in its arguments that the
conflicts analysis in this child welfare context must be dynamic
rather than static. As the Title Nine or Title Thirty litigation
progresses, the contentions and positions of the parents can often
diverge significantly, even if at the outset of the case they had
been allied in asserting that no abuse or neglect occurred and
that their children should be reunified with them. As time passes,
the capacity of each individual parent to be a fit caretaker may
improve or deteriorate, due to a multitude of factors such as
physical or mental health, substance abuse or treatment,
employment, housing, incarceration, domestic violence, parenting
classes, social services, and so forth. Likewise, the needs of
the children may evolve, and their relationships with each parent
may grow or dwindle. The Division's factual contentions may focus
more on one parent than another as the case progresses, with
shifting degrees of culpability for past harm inflicted upon the
children. Expert opinions about each parent may also diverge.
For these many reasons, an initial assessment at the outset
of a case that there is no apparent conflict between the parents
48
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may become invalid with the passage of time. Hence, it is vital
that the conflicts analysis be updated when such changes occur.
To summarize, we conclude that there is no per se prohibition
upon, or any presumptive disallowance of, different staff
attorneys within the same OPR field office separately representing
co-defendant parents in Title Nine and Title Thirty cases.
Nevertheless, greater scrutiny of the potential for conflict is
required when the parents' factual contentions, legal positions,
or remedial preferences materially diverge. The propriety of
continued dual representation of both clients out of the same OPR
office must be reexamined when such divergence materializes. In
particular, in accordance with RPC 1.7, the analysis must focus
on whether the clients are now "directly" adverse to one another,
or whether their respective staff attorneys are "materially
limited" by the circumstances in being able to zealously advocate
their interests.
With respect to whether disqualification of one or both staff
attorneys is required, the OPR appellate attorney urges that we
apply in this child welfare context the language of Bell, focusing
on whether there is a "significant likelihood of prejudice" to the
clients created by the potential conflict-of-interest. Bell,
supra, 90 N.J. at 171. That standard for disqualification may
well be sensibly extended from Bell, subject to the broader
49
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examination of this general issue by the Court itself or a
designated rule-making committee.
However, for the reasons we explain more fully in Part III(C),
infra, we disagree with appellants' counsel that a trial court has
no role in inquiring into potential conflicts before that threshold
of "substantial likelihood of prejudice" is attained. We also do
not agree with appellants that the trial judge in this particular
case acted prematurely and precipitously in reacting to the
conflict potential once the co-defendant parents had advocated
competing parenting plans. To the contrary, we agree with the Law
Guardian and the amicus that the conflicts concerns may be an
appropriate subject of judicial inquiry even before "a substantial
likelihood of prejudice" materializes.
B.
Client Consultation and Potential Waiver of Conflicts
Having attempted to define what may constitute a
disqualifying conflict in this Title Nine and Title Thirty setting,
we turn our attention to the related important subject of client
consultation and potential waiver. Here again, the test of the
governing ethical rules is instructive.
RPC 1.7(b) provides that:
Notwithstanding the existence of a concurrent
conflict of interest under paragraph (a), a
lawyer may represent a client if:
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(1) each affected client gives informed
consent, confirmed in writing, after full
disclosure and consultation, provided,
however, that a public entity cannot consent
to any such representation. When the lawyer
represents multiple clients in a single
matter, the consultation shall include an
explanation of the common representation and
the advantages and risks involved;
(2) the lawyer reasonably believes that the
lawyer will be able to provide competent and
diligent representation to each affected
client;
(3) the representation is not prohibited by
law; and
(4) the representation does not involve the
assertion of a claim by one client against
another client represented by the lawyer in
the same litigation or other proceeding before
a tribunal.
[RPC 1.7(b) (emphasis added).]
Multiple representation of the co-defendants by OPR staff
attorneys in the present case does not fall under any of the
categorical exceptions to client waiver specified in RPC
1.7(b)(2),(3),(4). Defendants' trial attorneys have each
certified that they are prepared to continue to provide their
respective clients with diligent representation. RPC 1.7(b)(2).
Representation of multiple defendants in a Title Nine case is not
prohibited by law, RPC 1.7(b)(3), nor have the co-defendants in
this case asserted claims against each other in this litigation.
RPC 1.7(b)(4). See Michels, supra, § 26:4-1 at 635 ("a lawyer may
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not simultaneously represent adversaries in a litigation matter,
even with the consent of both parties").
Nor does this matter entail the type of conflict of interest
that our Court has otherwise recognized as "so egregious" that it
"cannot be cured by consent." In re Garber, 95 N.J. 597, 613-14
(1984). The trial judge in this very case recognized that "it is
highly unlikely in abuse and neglect cases an attorney could be
involved in a conflict so serious in nature that it could not be
waived."
By comparison, joint representation of co-defendants in a
criminal case can be subject to waiver of conflicts in appropriate
circumstances. See Cottle, supra, 194 N.J. at 473; Bellucci,
supra, 81 N.J. at 544-45. See also Gary T. Lowenthal, Joint
Representation in Criminal Cases: A Critical Appraisal, 64 Va. L.
Rev. 939, 956 (1978). That said, if a court finds an actual
conflict of interest in a criminal case, "there can be no doubt
that it may decline a proffer of waiver, and insist that defendants
be separately represented." Wheat v. United States, 486 U.S. 153,
162, 108 S. Ct. 1692, 1698, 100 L. Ed. 2d 140, 150 (1988). That
residual judicial authority to disqualify counsel exists here, as
well. See, infra, at Part III(C), concerning the court's role.
As the professional ethics rules and related authorities have
instructed, in order for client consent to a waiver of attorney
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conflict to be effective, it must be informed and based on "full
disclosure and consultation." RPC 1.7(b)(1). The consent can be
reviewed by the trial court for fairness, reliability, and
compliance with the Rules of Professional Conduct. State v. Loyal,
164 N.J. 418, 440 (2000) (in which the Court disregarded a client's
consent to a conflict in a criminal case, based on the need to
maintain public confidence in the judicial system); In re Dolan,
76 N.J. 1, 13 (1978) (reaffirming that a client's consent must be
knowing, intelligent, and voluntary).
"Sophistication" of the client is also a factor to be
considered in determining whether his or her consent was adequate.
Advisory Comm. on Prof'l Ethics Op. 679 (July 17, 1995). See
Marshall J. Berger, Disqualification for Conflicts of Interest and
the Legal Aid Attorney, 62 B.U. L. Rev. 1115, 1130 (1982)
(observing that legal aid clients traditionally lack experience
in legal matters). This is of particular concern in the present
context of the representation of indigent parents in Title Nine
and Title Thirty matters. At times, such indigent parents have
limited education, mental health issues, cognitive limitations,
and other personal problems that can make it difficult for them
to fully appreciate the concepts of an attorney's conflict-of-
interest and the respective advantages and disadvantages of
changing counsel.
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The logistics for attorneys obtaining client waivers in
business litigation or other civil matters can be more feasible
than those confronting lawyers who represent indigent parents.
Such parents at times may be harder to locate, meet with, and
counsel than other clientele.
Another impediment to waiver in Title Nine and Title Thirty
cases is the possibility – which can also arise in the context of
indigent criminal defendants – that a defendant parent may refuse
to waive a conflict in a deliberate, bad faith effort to stall the
case by forcing the substitution of pool counsel or a staff
attorney from a different OPR office. A transition to such
substituted counsel will consume time, as the new attorney will
need to review the case from scratch and prepare for future
proceedings. This prospect of delay is particularly worrisome in
light of the strong policies that favor achieving permanency of
outcomes for children who remain in limbo while Title Nine and
Title Thirty cases are litigated. N.J. Div. of Youth & Family
Servs. v. K.M., 136 N.J. 546, 558 (1994).
Consequently, the OPR and the courts have an important role
in not allowing clients to withhold conflict waivers in bad faith
as a stalling maneuver. In extreme instances where such bad faith
exists, the client's demand for a new attorney may be rejected,
despite his or her expressed dissatisfaction. Of course, if the
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assigned attorney is actually compromised and is thereby depriving
the client of effective assistance, our appellate courts are
empowered to set aside final judgments or fashion other appropriate
relief on that basis. See B.R., supra, 192 N.J. at 306.
We emphasize the importance of client communication about
conflict issues, particularly at the outset of the Title Nine or
Title Thirty case when the OPR staff attorneys are first assigned
to represent co-defendant parents. Each assigned OPR attorney
must discuss with the client the arrangements for the office's
representation, including the screening procedures that will be
maintained to assure confidentiality and independent advocacy. On
this point, we are troubled that there is no assertion in the
certification by G.S.'s staff attorney (unlike that from K.S.'s
attorney) that such discussions about conflict with that
particular client took place at the outset of this case in 2015. 14
The discussion with the client and the client's assent to the
arrangement should be documented in some uniform manner, either
by a standard form or file memorandum that can be evidential if a
future problem arises. In this regard, we do not decide in these
appeals whether a written waiver by the client, as prescribed by
RPC 1.7(b)(1), is the best means for substantiating the OPR
14
This omission as to G.S., which was perhaps inadvertent, should
be addressed on remand.
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client's acquiescence. We leave that question to further
consideration by the OPR itself, or by a Supreme Court Committee
if one is asked to examine these issues.
C.
The Court's Appropriate Role
The final major subject – which perhaps is the main reason
why these particular interlocutory appeals were generated – is
defining the court's appropriate role in reviewing and taking
action on conflict issues implicated by the OPR's current post-
reform practice of relying principally on staff attorneys rather
than pool counsel to represent co-defendant parents. The OPR
contends that the trial court should generally defer considerably
to the OPR's professional judgment in dealing "in-house" with such
conflicts concerns, and to refrain from conducting sua sponte
inquiries into the subject. The Law Guardian and the amicus are
more supportive of the court taking a proactive role, although
they agree with the OPR that it is generally entitled to
substantial deference in handling such conflicts problems.
It is well established that an evaluation of whether a
conflict exists in multiple representation cases is initially best
addressed by the attorney or attorneys in each case. Opinion 552,
supra, 102 N.J. at 206; Bell, supra, 90 N.J. at 173-74. The
attorney must be "satisfied based on objective reasonableness that
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there is no direct adversity between the defendants and that joint
representation will not adversely affect the relationship of
either class of defendants, RPC 1.7(a), nor materially limit his
or her professional responsibilities towards any such client-
defendant, RPC 1.7(b)." Opinion 552, supra, 102 N.J. at 206.
"Initially, it is the attorney's obligation when he first
meets with his prospective clients to advise them of possible
conflicts and of their constitutional rights." Land, supra, 73
N.J. at 32. In keeping with such principles, Bell, supra, 90 N.J.
at 175, the Court institutionally "was satisfied that the New
Jersey Public Defender is sensitive to the need to appoint outside
counsel in cases of potential conflict."
The reasonableness of a lawyer's initial determination
concerning a conflict of interest is subject to subsequent review
by the court. Restatement (Third) of the Law Governing Lawyers,
supra, § 121 comment g. "Although lawyers must engage in self-
regulation as an initial matter, when the issue of conflict of
interest arises in a disqualification context, the court has a
supervisory role to play." Geoffrey C. Hazard, Jr. & W. William
Hodes, The Law of Lawyering, vol. 1 at 236.2 (2d ed. 1992).
Here, the trial judge, who is charged with the duty to enforce
the Rules of Professional Conduct under Rule 1:18, had the
authority to both raise the potential conflict of interest, sua
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sponte, and to consider the issue at an evidentiary hearing, if
the issue could not be resolved on the written record. State v.
Murray, 162 N.J. 240, 250 (2000); Dewey v. R.J. Reynolds Tobacco
Co., 109 N.J. 201, 222 (1988); Bell, supra, 90 N.J. at 173. We
reject appellants' contention that the trial judge here acted
prematurely or precipitously in ordering a hearing on the subject
and in attempting to ascertain whether sufficient informed client
waivers had been procured.
Although we are not persuaded that the history of domestic
violence of both parents with one another and their mutual
substance abuse posed a sufficient conflict to require client
waiver, when the defendants advocated conflicting parenting plans,
that event tipped the balance enough to justify the court's sua
sponte order for a hearing. The parenting plans were diametrically
opposed: the mother's preferred plan was for her to maintain a
caretaking role in a KLG with her relative, whereas the father's
plan would instead have the children reunified solely with him.
If, for example, an expert witness were called by the mother's
attorney to opine on the merits of her plan, the father's attorney
would have a strong tactical incentive to impeach that expert
through cross-examination or by proffering a competing expert to
criticize the mother's plan. That head-on divergence of positions
triggered the need to be certain that the two staff lawyers
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involved were not impeded from advocating their clients' positions
and that their clients understood the arrangements within the OPR
office and assented to them. We do not go so far as to say that
the trial court was required to investigate the conflicts problems,
but the court certainly did not abuse its discretion in raising
the issue and calling for a hearing with the clients present.
The OPR appellate attorney has expressed concerns about the
potential for a conflicts hearing to reveal confidential or
prejudicial information inadvertently if the clients testified at
such a proceeding. Although those disclosure risks are not
fanciful, we are confident that the trial court can structure the
inquiries at such a proceeding in a manner that minimizes that
risk. By comparison, our criminal courts similarly deal routinely
with such disclosure risks at hearings when defendants wish to
discharge their assigned counsel and represent themselves. See,
e.g., State v. Crisafi, 128 N.J. 499, 509 (1992) (regarding
judicial inquiries at hearings to assure a criminal defendant is
waiving his right to assigned counsel "knowingly and
intelligently").
That said, we discern the need to modify the trial court's
rulings here in one significant respect. Although we appreciate
the judge's prophylactic good intentions in assuring that the
representation of co-defendant parents in Title Nine and Title
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Thirty cases is not compromised in future cases, the judge erred
by importing into this OPR context the specific procedures for
criminal representation prescribed by the Court in Bell and further
codified in Rule 3:8-215 of our Rules of Criminal Practice.
We recognize that Bell detailed, in essence, a hierarchy of
preferred arrangements for the representation of indigent co-
defendants in criminal cases: first, deeming the use of outside
pool counsel as "the norm"; second, "as the next preferable
course," assigning deputy public defenders from an adjoining
county; and third, as a last resort, providing counsel by multiple
staff attorneys within the same local office, with appropriate
screening. Bell, supra, 90 N.J. at 174.
We decline to impose an identical hierarchy in this setting,
an approach that the OPR, the Law Guardian, and the Bar Association
all likewise disfavor for application to Title Nine and Title
15
Rule 3:8-2 provides as follows:
No attorney or law firm shall be permitted to
enter an appearance for or represent more than
one defendant in a multi-defendant indictment
without securing permission of the court.
Such motion shall be made in the presence
of the defendants sought to be represented as
early as practicable in the proceedings but
no later than the arraignment so as to avoid
delay of the trial. For good cause shown, the
court may allow the motion to be brought at
any time.
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Thirty cases. As a policy matter, the Court's opinion in Bell in
1982 could not have anticipated the reforms of the child-welfare
pool attorney system that were recommended in the early 2000s and
which have finally been fully implemented. Those reforms conflict
with Bell's treatment of pool attorney representation in criminal
cases as "the norm."
Second, there are qualitative differences between criminal
litigation, which tends to focus retrospectively on evidence of
past events bearing on whether a defendant committed an offense,
and child welfare litigation. The latter tends to be more dynamic
and forward-looking, and a setting in which the lawyer-client
relationship can involve much broader concerns for trial advocacy
than disproving past wrongdoing.
Third, the second-preferred option in Bell of using staff
attorneys from adjoining counties is not readily feasible here
since there are only eight regional OPR offices for the twenty-
one counties. The defendant parents consequently may have
transportation impediments in traveling to their attorneys'
offices.
Lastly, as we have already mentioned, we respectfully suggest
that a broader study of these issues by a Committee is preferable
to the adoption in these appeals of the trial court's preemptive
mandate for a demonstration of the need to use staff attorneys at
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the outset of every Title Nine and Title Thirty case. In that
same vein, we defer to the Supreme Court on whether a Court Rule
for Part V children-in-court cases akin to Rule 3:8-2 should be
adopted.
For these reasons, we affirm, with this important
modification, the trial court's orders calling for a hearing to
explore whether the continued representation of G.S. and K.S. by
separate staff attorneys within OPR-Central is appropriate under
the RPCs; whether the respective clients have waived any applicable
conflicts-of-interest with their informed consent; and whether
sufficient screening measures within the OPR office are being
maintained. The remand hearing on the conflicts issues shall be
completed within sixty days. Thereafter, depending on the
disposition of that hearing, the litigation may be concluded with
appropriate representation.
IV.
As a final word, we wish to make clear that our discussion
of these important representational issues should not be misread
as a suggestion that any of the staff attorneys or their
supervisors in this case have engaged in unethical or inappropriate
conduct. Indeed, the advocacy of co-defendants' competing
parenting plans by the two staff attorneys in OPR-Central provides
a strong indication of their professional independence in serving
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their respective clients.
We likewise do not wish to suggest that the trial judge in
this case was unjustified in wanting to delve into and resolve the
conflicts issues before the case proceeded to a final hearing and
final order. In fact, we commend the judge for conscientiously
placing an important spotlight on these vital issues, and for his
thoughtful written opinions addressing them.
We do not presume in this opinion to resolve all of the
institutional issues that are posed here. We hope and respectfully
suggest they will be examined more comprehensively and deeply by
a designated Supreme Court Committee with, of course, the
collective input and wisdom of the OPR, other stakeholders, and
experts in the field.
V.
The trial court's rulings on the conflicts issues are
accordingly affirmed, as modified. The matter is remanded for a
hearing consistent with this opinion. We do not retain
jurisdiction.
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