When County Counsel has a conflict of interest in a juvenile dependency case, can it keep representing the agency and just drop the child, or must it withdraw from representing both?

Plain-English summary

The Juvenile Department of the Los Angeles County Superior Court asked about the role of County Counsel, which through its Juvenile Division represents the Department of Children's Services in dependency proceedings and, except where a conflict is declared, also represents the child. The question was whether, when a conflict is declared after the arraignment/detention hearing, County Counsel should be relieved only of representing the child (and keep representing the Department), or be relieved of representing both.

The committee identified Rule 3-310(B), under which a member shall not concurrently represent clients whose interests conflict except with informed written consent, and the traditional rule that counsel must withdraw from all representation in a case where a conflict develops between clients (citing its Opinion 396 and California Formal Opinion 1988-96). It identified Rule 3-700(B), the mandatory-withdrawal rule, which requires withdrawal where the member knows or should know that continued employment will result in a violation of the rules. Applied here, that would require County Counsel to be relieved of representing both the child and the Department when a conflict is declared.

The committee identified that, although clients may agree at the outset (or even after a conflict arises) that the attorney may continue to represent one of them, a minor may lack the legal capacity to give such a waiver, and many minors lack sufficient knowledge and understanding to comprehend the required full disclosure. It identified that the solicitation of a child's waiver is apparently not part of the Juvenile Court's current practice. Where the minor lacks the legal capacity to consent, the committee concluded, County Counsel must withdraw from representation of both the child and the Department when a conflict arises. It noted In re Patricia E. (the trial court's failure to consider the child's need for independent counsel was prejudicial error) and Welfare and Institutions Code section 317, and expressly did not address whether a guardian ad litem could give a waiver.

Currency note

This opinion was issued in 1990, before California's November 1, 2018 adoption of the renumbered Rules of Professional Conduct. It interprets former Rule 3-310(B) (concurrent representation), corresponding to current Rule 1.7, and former Rule 3-700(B) (mandatory withdrawal), corresponding to current Rule 1.16, along with Welfare and Institutions Code sections 300 and 317. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules and statutes before relying on any specific requirement mentioned here.

View original opinion

Common questions

Q: When County Counsel's child and agency clients conflict, can it keep the agency and drop the child?

A: Per the opinion, no. The committee concluded County Counsel should be relieved of representing both, with the court appointing separate counsel for the child and the Department.

Q: Why can't the conflict just be waived?

A: Per the opinion, a minor generally lacks the legal capacity to waive the conflict and may not comprehend the required disclosure, so where the minor cannot consent, withdrawal from both is required.

Q: What rule requires withdrawing from both representations?

A: Per the opinion, Rule 3-700(B)'s mandatory-withdrawal requirement, read with the conflict rule (Rule 3-310(B)) and the committee's Opinion 396 and California Formal Opinion 1988-96.

Background and rules framework

The opinion interprets former California Rule 3-310(B) (concurrent representation of conflicting interests), corresponding to ABA Model Rule 1.7, and former Rule 3-700(B) (mandatory withdrawal), corresponding to Model Rule 1.16, in the context of government representation in dependency proceedings under Welfare and Institutions Code sections 300 and 317. It relies on In re Patricia E. and the committee's Opinion 396.

Citations and references

Rules of Professional Conduct (former):

• California Rule 3-310(B) (concurrent representation)
• California Rule 3-700(B) (mandatory withdrawal)

Statutes:

• California Welfare and Institutions Code sections 300, 317

Cases:

• In re Patricia E., 174 Cal.App.3d 1 (1985)

Other opinions cited:

• LACBA Formal Opinion 396
• California State Bar Formal Opinion 1988-96

See also

• LACBA Ethics Op. 453: Criminal Defense by a City-Prosecutor Firm
• LACBA Ethics Op. 504: Minor Clients and Confidentiality in Dependency Proceedings
• LACBA Ethics Op. 533: Joint Representation Under Rule 1.7(d) and Three Exceptions

Source

• Landing page: https://lacba.org/?pg=ethics-opinions
• Original PDF: https://lacba.org/docDownload/2010984