Wednesday, May 7, 2008
The Arkansas Supreme Court has held that an attorney who serves as a prosecutor is not disqualified from representing a parent in a proceeding to change child custody when criminal charges are brought against the other parent's current spouse: "...disqualification is not required because there is not a direct conflict of interest nor is this a case of dual representation..."
The case involved a divorced husband and wife who were awarded joint custody of three minor children. The husband noticed bruises on the buttocks of one child that were later determined to have resulted from a whipping administered by the wife's live-in boyfriend. The attorney filed a petition for sole custody on behalf of the husband that was granted. The wife then married the boyfriend, who "repeatedly assaulted [her] while in the children's presence" and stabbed her with a barbeque fork. The same attorney who had handled the custody petition was the prosecutor of the ensuing criminal battery case, which led to a motion to disqualify filed by the wife (who also divorced husband number two).
The court found no conflict and that "proper steps were taken to remove even the appearence of a conflict of interest" in that the prosecutor removed himself and his staff from the case and a special prosecutor took over. Withdrawal from both cases was not required. (Mike Frisch)