Why a Recent Second District Decision Could Lead to More Appointments for Conflict Counsel

The recent Second District decision of In re Darius G., No. 07-JA-309, slip op. (2d Dist. December 15, 2010) could provide more work for appointed conflict counsel and guardian ad litems in 2011. In Darius, the State petitioned the court to find the child to be a neglected minor, and Attorney 1 from the Conflicts Division of the Public Defender 's office was appointed to represent the minor. Darius, No. 07-JA-309. slip op. at 2. A "shelter-care" hearing was held shortly thereafter, at which Attorney 2 from the Public Defender's office was appointed to represent the mother. Id. At the following hearing, the mother stipulated to the neglect petition, and the child, who was now being represented by Attorney 3 (another conflict counsel), was placed into the care of the DCFS. Id. What followed was a series of permanency-review hearings to monitor the steps that the mother and father were taking to regain custody of their child. Id. at 3. Throughout these hearings, Attorney 2, who had been initially appointed to represent the mother, was now appointed to represent the father, and the mother was now represented by appointed counsel Attorneys 4 and 5. Id. The State later petitioned for termination of parental rights and power to consent to a adoption. Id. There, the mother was represented by yet another attorney, Attorney 6. Darius, No. 07-JA-309, slip op. at 4. At the next substantive hearing, Attorney 6, the mother's most recent attorney, appeared on behalf of the child, not the mother (replacing Attorney 3),and Attorney 5 appeared on the mother's behalf. Id. At the discovery hearing, Attorney 5 again appeared on the behalf of the mother, but Attorney 3, who had been replaced at the last hearing by Attorney 6, now re-appeared on behalf of the child. Id. At the fitness trial, the mother was represented by Attorney 5, and the child was represented by an entirely new attorney, Attorney 7. Id. at 5. At trial, the Court ultimately found the mother to be unfit, and her parental rights were terminated. Id.

My apologies if the above fact pattern conjures images of a carnival shell game or recalls less-than-fond memories of the LSAT's logic games section. But from the original neglect petition to the final parental rights adjudication, the mother was represented by four separate attorneys, one of whom later represented the father (Attorney 2) and another of whom later represented the child (Attorney 6), who was himself represented by three separate attorneys throughout the proceedings. Though there were certainly enough personnel changes to confuse the parties, only one conflict of issue was raised on appeal--when Attorney 6, who had represented the mother, appeared on behalf of the child at the pre-trial conference. The issue before the court was whether the mother "received ineffective assistance of counsel resulting from a per se conflict of interest when, during these proceedings, the same attorney from the public defender's office appeared on her behalf at one hearing but then subsequently appeared on Darius's behalf at another hearing." Id. at 1-2.

The court held that it was a per se conflict of interest for Attorney 6 to appear on behalf of both the mother and the child in the same proceeding because Attorney 6 could have obtained information from the mother during her representation that he could have later used against her when he represented the child (i.e., he could have discovered in confidence that she was unfit and then later used at that information against the mother when he represented the child). Darius, No 07-JA-309, slip op. at 11,16. The court ruled that "while multiple attorneys from the public defender's office may substitute to represent the same client, the same attorney may not during the proceedings appear on behalf of different clients." Id. at 15-16. Further, the trial court must not "accept an appearance from an attorney who already, at some point during the proceedings, appear on behalf of another party." Id. at 16.

A parental fitness proceeding is a unique adversarial proceeding in which the State is pitted against the parent, who is provided with counsel, to decide the best interests of the child, who is also represented by counsel. In many ways the interests of all three parties are competing. Hence, the appointment of conflict counsel for the parent or child. However, the Public Defender's office often represents either side and, as we have seen here, sometimes both. This creates conflicts of interests which require the engagement of outside conflict counsel. Now that there is a concrete rule on point, courts will need to be more attentive in appointing conflict counsel in cases involving minors, which could lead to more work for conflict counsel and GALs in the near future.