When a district attorney represents a minor 'in the interest of the state' in a juvenile dependency case, what should the DA do if the minor's wishes conflict with the state's interest?

Currency note

This opinion was issued in 1977, before the State Bar of California's adoption of the November 1, 2018 revisions to the Rules of Professional Conduct. The opinion interprets former California Rule 5-102(B) (representing conflicting interests), with a dissent invoking former Rule 6-101(2) (diligence); these are the predecessors to current California Rules 1.7 and 1.3 and Model Rules 1.7 and 1.3. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, statute, or procedure mentioned here.

Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the State Bar of California's rules of professional conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.

About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. The opinion text is reproduced at the bottom; the official source (linked) controls.

View original opinion

Plain-English summary

The committee was asked whether a district attorney may, without violating former Rule 5-102(B), represent a minor in dependency proceedings under the Welfare and Institutions Code. Under sections 318 and 351, the DA may represent the minor at such hearings, at the juvenile court's request or with its consent, where a parent or guardian is charged in a pending criminal prosecution for unlawful acts against the minor; section 351 requires that representation to be "in the interest of the state" with the court's approval of its terms. The committee limited its opinion to former Rule 5-102(B), which barred representing conflicting interests without the written consent of all parties concerned, treating the other questions raised as matters of law beyond its purview.

The committee reasoned that where the statute requires the representation to be "in the interest of the state," and the minor's interests conflict with that interest, the representation may be proscribed by former Rule 5-102(B) even though the only party the DA represents is the minor. Because the phrase "in the interest of the state" is undefined, the DA may not be able to tell whether a conflict exists; at a minimum the DA should consider whether the positions to be taken for the minor conflict with the DA's prosecutorial function (citing 57 Ops. Cal. Atty. Gen. 193 (1974)). If the DA cannot determine whether a conflict exists, the committee said the DA should request the juvenile court to consider and approve the propriety of the representation.

In the hypothetical, a 16-year-old in a foster home wanted to return to his parents but the DA, representing the minor, concurred with a report recommending the minor stay in foster care and told the referee it would be unwise for the minor to return home. A dissent by Paul Ligda argued that the DA's failure to advocate the minor's position breached the diligence duty of former Rule 6-101(2); that section 351 applies only when a related criminal prosecution is pending, which the facts did not show, so there was no prosecutorial function; that a mere difference of opinion is not a "conflicting interest"; and that if the DA could not provide the required advocacy he should withdraw without stating his reason (citing People v. Munoz and Uhl v. Municipal Court).

Common questions

Q: Can a district attorney represent a minor in a juvenile dependency case in California?

A: The committee did not bar it outright. It concluded the DA should consider whether the minor's interests conflict with "the interest of the state" the statute requires the representation to serve, and seek the juvenile court's approval where the DA cannot determine whether a conflict exists.

Q: What should the DA do when unsure whether a conflict exists?

A: The committee said the DA should at least consider whether the positions to be taken for the minor conflict with the DA's prosecutorial function, and, if unable to determine that a conflict exists, request the juvenile court to consider and approve the propriety of the representation.

Q: How did the dissent see it?

A: The dissent viewed the facts as a mere difference of opinion rather than a conflict under former Rule 5-102(B), argued the DA's silence about the minor's wish to go home breached the diligence duty (former Rule 6-101(2)), and said the proper course, if the DA could not advocate the minor's position, was to withdraw without stating the reason.

Background and rules framework

The opinion interprets former California Rule 5-102(B) (no representation of conflicting interests without the written consent of all parties), the predecessor to current California Rule 1.7 and Model Rule 1.7, against the juvenile dependency framework of Welfare and Institutions Code sections 300 et seq., 318, and 351 (district attorney representation of a minor "in the interest of the state" with juvenile court approval). The dissent relies on former Rule 6-101(2) (diligence), now reflected in California Rule 1.3 and Model Rule 1.3.

Citations and references

Rules of Professional Conduct:

• Former California Rule 5-102(B); former Rule 6-101(2) (cited in the dissent)
• Current analogs: Model Rules 1.7 and 1.3 / California Rules 1.7 and 1.3

Statutes:

• California Welfare and Institutions Code sections 300 et seq., 318, and 351

Cases:

• People v. Munoz (1974) 41 Cal.App.3d 62 [115 Cal.Rptr. 726] (cited in the dissent)
• Uhl v. Municipal Court (1974) 37 Cal.App.3d 526 [112 Cal.Rptr. 478] (cited in the dissent)

Other authorities:

• 57 Ops. Cal. Atty. Gen. 193, 197 (1974)

See also

• CA Ethics Op. 1975-35: Third-Party Defense Fee Conditioned on a Client's Silence
• CA Ethics Op. 1976-41: Administrator and Pretermitted-Heir Roles for One Client

Source

• Landing page: https://www.calbar.ca.gov/legal-professionals/ethics-compliance-practice-resources/ethics/ethics-opinions
• Original opinion: https://www.calbar.org/ethics/Opinions/1977-45.htm

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

THE STATE BAR OF CALIFORNIA
STANDING COMMITTEE ON PROFESSIONAL RESPONSIBILITY AND CONDUCT
FORMAL OPINION NO. 1977-45

ISSUE:

Ethical considerations involved in the representation of minors by a district attorney "in the interest of the state" in proceedings under section 300 of the Welfare and Institutions Code.

DIGEST:

In proceedings under section 300 of the Welfare and Institutions Code, where the district attorney represents a minor in the interest of the state, the district attorney should consider whether there may be a conflict between the interests of the minor and those of the state and, where there is doubt, request the consideration and approval of the representation by the juvenile court.

AUTHORITIES INTERPRETED:

Rule 5-102(B) of the Rules of Professional Conduct of the State Bar.

Welfare and Institutions Code section 300, et seq.

DISCUSSION

The Committee has been asked whether a district attorney may properly, and without violating rule 5-102(B) of the Rules of Professional Conduct, represent a minor in proceedings brought under the dependent children provisions of the Welfare and Institutions Code. (Calif. Welf. & Inst. Code, 300-553.2.) Under these provisions, hearings are held to determine whether a minor is a dependent child within the jurisdiction of the juvenile court and whether a minor who has been taken into custody (but who has not then been found to be a dependent child) should be further detained. At the request, or with the consent, of the juvenile court, the district attorney may represent the minor at these hearings if the parents, guardian or other person having responsibility for the minor "is charged in a pending criminal prosecution based upon unlawful acts committed against the minor." (Id., 318, 351.) Where the district attorney represents the minor at a juvenile court proceeding, section 351 of the Welfare and Institutions Code requires the representation to be "in the interest of the state" and requires the juvenile court's consent or approval of the terms of the representation. Representation of a minor at a detention hearing may obligate the district attorney to represent the minor "at all subsequent proceedings before the juvenile court." (Id., 318, subds. (b) and (c).)

The request for the opinion of this Committee sets forth the following hypothetical situation:

A minor, 16 years of age, has been in a foster home for three years as a dependent child. At the minor's third annual review to determine whether the juvenile court's continued jurisdiction over the minor is required, the parents of the minor request that the minor be returned to their home. The parents are represented by the public defender. The minor is represented by the district attorney, pursuant to sections 318 and 351 of the Welfare and Institutions Code. The district attorney does not represent any other party to the proceeding. A social worker or probation officer submits a written report recommending that the minor remain in the foster home. The district attorney states to the referee of the juvenile court at the time of the hearing that he or she concurs with the written report and its recommendations. The minor desires to return to the parents' home and has told this to the district attorney. However, the district attorney does not indicate the minor's desire to the court. That information is developed by questions to the minor from either the referee or the public defender. When questioned about the minor's desire, the district attorney states that it would be unwise for the minor to return to the parents' home.

The inquirer has asked several questions pertaining to this hypothetical situation. Many of these call for the Committee's consideration of questions of law which are beyond the purview of the Committee. Accordingly, the Committee has in this opinion limited its consideration to the applicability of rule 5-102(B) of the Rules of Professional Conduct, which provides:

"A member of the State Bar shall not represent conflicting interest, except with the written consent of all parties concerned."

Where the district attorney represents the minor pursuant to sections 318 and 351 of the Welfare and Institutions Code, that representation is, by statute, required to be "in the interest of the state." Where the interests of the minor are in conflict with "the interest of the state," the representation may be proscribed by rule 5-102(B) of the Rules of Professional Conduct, even though the only "party" represented by the district attorney is the minor.

The phrase "in the interest of the state" is not defined by statute and, therefore, the district attorney may not be able to determine whether a conflict exists. Nevertheless, we believe the district attorney should attempt to determine whether any such conflict exists. At a minimum, the district attorney should consider whether the actions or positions which the district attorney should take on behalf of the minor conflict with the district attorney's prosecutorial function. (See 57 Ops. Cal. Atty.Gen. 193, 197 (1974). If the district attorney is unable to determine that a conflict exists, the district attorney should request the juvenile court to consider and approve the propriety of the district attorney's representation of the child.

This opinion is issued by the Standing Committee on Professional Responsibility and Conduct of The State Bar of California. It is advisory only. It is not binding upon the courts, The State Bar of California, its Board of Governors, any persons or tribunals charged with regulatory responsibilities, or any member of the State Bar.

DISSENT

I dissent. In my opinion the district attorney's failure to advocate his minor client's position before the court and his tacit approval of a finding contrary to the minor's position is a breach of his professional responsibilities under rule 6-101(2) of the Rules of Professional Conduct which provides, in part:

"A member of the State Bar shall not wilfully ... fail to use reasonable diligence and his best judgment .. . in an effort to accomplish ... the purpose for which he is employed."

The Committee conceives the district attorney as having a dual role because of the curious language of Welfare and Institutions Code section 351 which authorizes his representation of a minor "in the interests of the State." But section 351 of the Welfare and Institutions Code only applies when someone is charged, "in a pending criminal prosecution based upon unlawful acts committed against the minor." Nothing in the factual situation presented here suggests there is a pending criminal action at the time of this third annual review. Hence, there is no prosecutorial function. Nor is there a need to guess what possible "interests of the State" require that an attorney withhold his client's desire to go home to live with his parents from the very court deciding where the child will live.

The factual situation we are given reflects a mere difference of opinion between the district attorney who believes his client should remain in the foster home and the client who wants to go home. I do not perceive that difference of opinion as "conflicting interests" within the meaning of rule 5-102(B) of the Rules of Professional Conduct. Indeed, much of the lawyer's art is in the ability to resolve these differences in confidential discussions with the client well before their appearance in court, where a client seemingly should be able to expect his lawyer to be on his side. Therefore I see no conflict issue to be presented to the court for resolution. To disclose this difference of opinion to the judge cannot help but hurt the client's cause. What judge is going to be favorably impressed when the district attorney tells him that the district attorney thinks the client is wrong?

If the district attorney feels so strongly about where his client lives that he cannot provide the level of advocacy required by rule 6-101(2) of the Rules of Professional Conduct, there is authority for him to withdraw. (See People v. Munoz (1974) 41 Cal. App.3d 62 [115 Cal.Rptr. 726].) If he chooses this course, he should withdraw without telling the court the reason for his withdrawal. (See Uhl v. Municipal Court (1974) 37 Cal.App.3d 526 [112 Cal.Rptr. 478].)

Paul Ligda