Here Today, Conflict Tomorrow



In re L.H., L.H. and L.H., Juveniles
One requirement to becoming a licensed attorney in most (if not all - I haven’t checked) states is for the attorney to pass the Multistate Professional Responsibility Examination (MPRE). In short, it’s an ethics exam. It covers a wide variety of topics, including how you store a client’s money and when you’re allowed to sleep with a client (a topic the SCOV covered in 2019). I found that in studying for the exam, when in doubt, choose the second-most ethical answer on the multiple choice. Most ethical problems are clear cut. For instance, if you engaged in representing a wife in a divorce, you cannot represent the husband in a post-divorce matter. That’s what we call a “conflict of interest.” This case is a termination of parental rights (TPR) hearing at heart, but it addresses an interesting ethical dilemma.

This case involved four children (all with the initials L.H., so that’s not at all confusing), who became subjects of a court proceeding due to allegations of domestic violence and lack of adult supervision. The parents agreed that the children were in need of care and supervision (CHINS), and the initial plan was for the children to either reunify with their mom or be adopted.


Oldest L.H. was eventually put into DCF custody and transferred to New Hampshire to a foster family. The three younger children stayed with Mom for another year or so before the court modified the case plan goal to add reunification with father as an additional goal. About 7 months later, the court placed the three youngest children in DCF custody. Six months later, the court terminated visits. Then the State moved to terminate the parents’ rights to their children. The court granted the petition as to the three youngest, denied the petition as to the oldest. The parents appealed.

Now the interesting part about this case is not the reasons for the kids coming into custody, the reason for suspending the visits, or the reasons for terminating the parents’ rights. The critical problem is a conflict of interest that an attorney had in the matter. The SCOV refers to the attorney as “Attorney,” so I will too.

From September 2014 to March 2016, Attorney represented all four children. In April 2016, the children received a new lawyer. On April 13, 2016, in walks Attorney, no longer representing the children, but the State. Attorney presents a letter signed by the juvenile’s guardian ad litem consenting to her representing the State. Mom’s attorney cites our Rule of Professional Conduct 1.9 that says in plain English: “A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing.”

Attorney responds that the interests between the State and the children are aligned because the juveniles supported the petition to terminate the parents rights, and the State does too. And, even if there was a conflict, the guardian ad litem could waive it. The trial court bought this and added that the conflict would be with the juveniles, not the parents, so the parents really could not challenge Attorney’s flip flop.

The SCOV rightfully disagrees (I say rightfully because I spend most of my time complaining about bad case law, but I should give credit where credit is due).

The SCOV says that the parents can absolutely raise this issue, and that it’s not up to the juveniles’ new attorney to raise it. Parents have an important, legally cognizable, interest in their relationships with their children. The United States Supreme Court agrees that parents have a vital interest in preventing the erroneous termination of that relationship. Both parents and children are entitled to counsel to ensure that the termination proceedings are conducted fairly and accurately. The SCOV then goes on to cite other jurisdictions that supports the parents’ right to raise this issue. Finally, the SCOV notes that conflicts in a case may compromise the judicial process as a whole, and the fairness to the litigants.
As to the conflict itself, the SCOV concludes that Attorney was disqualified from representing the State in this proceedings. The SCOV looks to the Vermont Rules of Professional Conduct (our ethics rules) to determine whether Attorney was conflicted for the purposes of the TPR. The SCOV does point out (in a footnote) that although it concludes that the trial court should have disqualified Attorney, that does not mean that the Attorney necessarily violated the Rules or should be disciplined for a violation.

The SCOV decides not to get into the nitty-gritty of the State’s and children’s specific positions to determine whether they are materially adverse. The SCOV concludes, in broad strokes, that when there is an abuse and neglect proceedings, representation of children conflicts with subsequent representation of the State. Trying to decide whether the parties are truly aligned is complex, so rather than parse out a rule that would allow Attorney to switch parties, the SCOV shuts it down altogether.

In CHINS cases, there are any number of factors that can contribute to even a slight divergence in the positions of the State and the children. Any divergence can create this material adversity. Parties often disagree on where the children should be placed, the requirements in the case plans, and the frequency, time, and place of parent-child contact. In a TPR hearing, the choices narrow to two: terminate or don’t terminate, but there are other issues that can be litigated, including a negotiated resolution that involves a post-adoption contact agreement.
Also, it is not uncommon for parties’ positions to change during the course of a CHINS proceeding. The State, parents, children, guardian ad litems, can all change or develop new viewpoints as the case progresses. Even if parties are aligned at one point, does not mean it will stay that way - it could even even change by the end of the hearing. In this case, the State’s position could easily lead to a risk of disruption and delays with minimal, if any, benefits.
Anyone who has ever interacted with a child knows that kids are tough nuts to crack when it comes to discerning their views on anything important. If I ask a kid, “What do you want to drink?” and kid says, “Coke,” then I 100% believe that kid wants a Coke. If I ask a kid, “where do you want to live?” no matter the answer, I know that kid is struggling with their loyalty to their parents and other caretakers (a central theme in CHINS cases). Sometimes the kid is a baby and has no idea what I’m even saying, let alone is able to answer. The guardian ad litem represents the kid’s best interests, the lawyer represents the child’s expressed and/or legal interests. The juvenile’s attorney and the guardian ad litem don’t always agree.
For all of these reasons, the SCOV adopts a bright line rule: the trial court is not to accept an appearance from an attorney who already, at some point during the proceedings, appeared on behalf of another party. This is an extension of the ethical rule, but the SCOV believes this is necessary.
As a last crack of the whip, the SCOV notes that “Attorney’s prosecution of the State’s TPR petition after her representation of the children undermines the integrity of the judicial process in a particularly sensitive context without sufficient justification. Such representation creates an appearance of impropriety and may be inconsistent with the lawyer’s role as a representative of the State—factors that are particularly significant in the context of abuse-and-neglect proceedings.” While an appearance of impropriety does not necessarily disqualify a lawyer, it can undermine the legal process just as much as the substance of impropriety.
Moving on to the question of whether this a conflict that may be waived, the SCOV concludes that all parties, not just the juveniles, need to waive the conflict. Since the parents did not consent, the conflict is not waived. Also addressed is the question of whether and how a juvenile may waive a conflict. The SCOV determines that first, any waiver on behalf of a child requires judicial review and approval. Second, the juvenile’s attorney needs to be involved and a guardian ad litem cannot independently waive a conflict.
Finally, we come to the question of prejudice because sometimes a trial court gets the procedure very, very, wrong, but nobody is actually prejudiced by this. The State in this case says that reversal isn’t needed because the conflict didn’t actually prejudice the outcome of this case. The SCOV says nobody needs to show prejudice in this case, it’s just implicit in the conduct because it compromises the integrity of the judicial process.

The SCOV reverses and sends the case back to the trial court, presumably with a new attorney for the State.

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