Saturday, July 24, 2021

Attorney's Judgment Prevails In Disagreement with Child Client

The South Dakota Supreme Court dealt with a significant issue of client autonomy where an attorney had allegedly disregarded the wishes of her minor client in a termination of parental rights proceeding.

The [Oglala Sioux] Tribe argues that a conflict of interest existed between C.R.W. and her attorney when the attorney argued for what the attorney believed was in C.R.W.’s best interest rather than advocating for C.R.W.’s expressed wishes. In particular, the Tribe points to C.R.W.’s attorney joining in DSS’s request to terminate parental rights, while indicating that C.R.W. still desired to be reunited with her parents. The Tribe argues that C.R.W.’s attorney violated Rule [of Professional Conduct] 1.2 by failing to comply with the directives of her client in advocating for C.R.W.

We review a circuit court’s ruling on a motion to disqualify an attorney under an abuse of discretion standard. Harter v. Plains Ins. Co., Inc, 1998 S.D. 59,¶ 21, 579 N.W.2d 625, 631. In denying the motion to disqualify, the court concluded that the record did not demonstrate that a conflict of interest existed between C.R.W. and her attorney. Even if the views of C.R.W. and her attorney differed to some degree at the time of the January permanency hearing, the court found that C.R.W. expressed a desire to terminate parental rights and be adopted at the final dispositional hearing in March. Further, the court determined that the attorney appropriately advocated for what she believed was in the best interest of C.R.W. as required by SDCL 26-8A-18 and that the “Tribe did not present any authority for the proposition that a Court should disqualify an attorney because another party believes the attorney is not properly abiding by their client’s decisions.”

The court also concluded that, contrary to the Tribe’s assertions, C.R.W.’s attorney did not violate Rule 1.2 in her representation of C.R.W. The court noted that C.R.W.’s attorney had obtained an opinion from the South Dakota State Bar Ethics Committee that “recently made clear that Counsel has not violated ethical obligations to her client.” Moreover, the court concluded that “little or nothing in the record supports the Tribe’s interpretation that [C.R.W.] ever directed her attorney to argue against termination.” The court’s factual determinations that a conflict did not exist between C.R.W. and her attorney are supported by the record.

The court noted the special issues relating to representing a child

Ethical considerations can no doubt arise from “best interests” representation. See Wassenaar, 56 S.D. L. Rev. at 205. However, in addressing possible conflicts, several states have reconciled an attorney’s separate obligations to protect a child’s best interest and to advocate for a child’s wishes by requiring the attorney to present both views to the court. See Clark v. Alexander, 953 P.2d 145, 153 (Wyo. 1998); In re K.H., 2012 M.T. 175, 285 P.3d 474; Interest of J.P.B., 419 N.W.2d 387 (Iowa 1988). These courts recognize the unique role of an attorney appointed to represent a child and how the relationship differs from the usual attorney-client relationship.

A Montana precedent persuaded

We adopt this approach as it relates to a child’s attorney appointed in abuse and neglect proceedings pursuant to SDCL 26-8A-18. The child’s attorney appointed pursuant to the statute is required to advocate for the child’s best interest. However, when the attorney’s determination of what constitutes the child’s best interest conflicts with the child’s expressed wishes, the ethical obligations of the attorney require consultation with the child to insure that the child’s objectives are presented to the court, along with the basis for the attorney’s determination of the child’s best interest. This approach “gives priority to the paramount goal of discerning the child’s best interest while enabling the lawyer to advocate an opposing viewpoint without fear of ethical violation.” J.P.B., 419 N.W.2d at 392.

The Tribe had standing to raise the issue. (Mike Frisch)

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