Can a family-law attorney who serves as a foster parent keep representing children and other parties in Family Court proceedings in the same county where the social services department runs the foster care system?

Plain-English summary

A family-law practitioner is considering becoming a foster parent in the same county where she practices. In that county, the commissioner of social services appears for the county in many of her matters, including Article 10 (child protective) and Article 10-A (permanency) proceedings, and the county also runs the foster care agency, with broad control over recruiting, training, licensing, selecting, overseeing, compensating, and terminating foster parents. She asks whether she may keep representing children (as Attorney for Children) and other parties in those proceedings while serving as a foster parent.

The committee frames this as a personal-interest conflict under Rule 1.7(a)(2): a lawyer may not represent (or continue to represent) a client where a reasonable lawyer would conclude there is a significant risk that the lawyer's professional judgment will be adversely affected by the lawyer's own personal interests. As Attorney for a Child, the lawyer must exercise judgment solely in the child's best interests; as a foster parent, she has a personal interest in preserving the foster relationship and in satisfying the commissioner. The committee notes those interests can occasionally diverge, for example if the social worker overseeing her foster placement testifies adversely to a client in another proceeding, requiring her to cross-examine or refrain from cross-examining that worker (citing N.Y. State 790).

The committee's bottom line is fact-specific. In many cases the conflict will be theoretical and remote, posing no significant risk, and she may represent children and adults in Article 10 and 10-A proceedings without consent. Where a reasonable lawyer would find a significant risk to her judgment for a given client, she must decline or withdraw from that representation, or, where the conflict is consentable, may proceed only if she reasonably believes she can provide competent and diligent representation and the affected client gives informed consent confirmed in writing. The committee flags but does not resolve whether a particular adult or minor client has capacity to give informed consent, pointing to N.Y. State 1069 (2015).

In practice

Under this opinion, a New York family-law lawyer who becomes a foster parent may continue representing children and other parties in Family Court proceedings in the same county as a default matter, because the personal interest usually creates no significant risk to her judgment. She must evaluate each client individually under Rule 1.7(a)(2): if a reasonable lawyer would see a significant risk that her foster-parent interest will adversely affect her judgment for that client, she must decline or withdraw, unless the conflict is consentable and she obtains the affected client's informed written consent after reasonably concluding she can still provide competent and diligent representation. Whether a given client has capacity to consent is a separate question the opinion does not resolve.

Common questions

Q: Can a lawyer be both a foster parent and an Attorney for Children in the same county?

A: Generally yes. The committee concludes the personal-interest conflict is usually theoretical and remote, so absent a significant risk to the lawyer's judgment she may continue these representations without client consent (Opinion 1122 ¶¶ 8, 11).

Q: When does the foster-parent role become a disqualifying conflict?

A: When a reasonable lawyer would conclude there is a significant risk that the foster-parent interest will adversely affect the lawyer's professional judgment for a particular client under Rule 1.7(a)(2) (¶¶ 6-7, 9).

Q: If a significant risk exists, can the client consent to the lawyer continuing?

A: Sometimes. If the conflict is consentable, the lawyer may proceed only if she reasonably believes she can provide competent and diligent representation and the affected client gives informed consent confirmed in writing (¶¶ 9, 11).

Background and rules framework

The opinion applies Rule 1.7 (Model Rule 1.7) on concurrent conflicts. Rule 1.7(a)(2) addresses personal-interest conflicts arising from the lawyer's own financial, business, property, or other personal interests, and Rule 1.7(b) sets the conditions, including informed written consent, under which a consentable conflict may be waived.

Citations and references

Rules of Professional Conduct:

• New York Rule 1.7(a)(2) (Model Rule 1.7): significant-risk personal-interest conflict
• New York Rule 1.7(b) (Model Rule 1.7): conditions for client consent

Statutes:

• N.Y. Family Court Act Articles 10, 10-A; §§1016, 1033-b: child protective and permanency proceedings; Attorney for the Child

Other opinions cited:

• N.Y. State 790 (2005): dual-role personal-interest conflict and the significant-risk test
• N.Y. State 1069 (2015): a minor's capacity to give informed consent

See also

• NY State Bar Op. 1130: Town attorney's firm and a zoning applicant
• NY State Bar Op. 1153: County attorney serving on a community college board
• NY State Bar Op. 1140: Representing a testifying expert witness

Source

• Landing page: https://nysba.org/ethics-opinion-1122/