IN RE: JASON C. (Anonymous)

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Supreme Court, Appellate Division, Second Department, New York.

IN RE: JASON C. (Anonymous), et al. Administration for Children's Services, petitioner-respondent; Louisa C. (Anonymous), respondent-respondent; Lawrence C. (Anonymous), appellant.

Decided: January 31, 2000

GUY JAMES MANGANO, P.J., LAWRENCE J. BRACKEN, DANIEL W. JOY and HOWARD MILLER, JJ. Gilman & Schneider, New York, N.Y. (David Gilman of counsel), for appellant.

In a child protective proceeding pursuant to Family Court Act article 10, the father appeals from an order of the Family Court, Queens County (Bogacz, J.), entered June 28, 1999, which directed that he be represented by assigned counsel.

ORDERED that the order is reversed, on the law, without costs or disbursements, and the matter is remitted to the Family Court, Queens County, for further proceedings consistent herewith.

 Although an individual's right to representation by counsel of his choice is not absolute, “any restriction imposed on that right will be carefully scrutinized”, and that right “will not yield unless confronted with some overriding competing public interest” (Matter of Abrams [John Anonymous], 62 N.Y.2d 183, 196, 476 N.Y.S.2d 494, 465 N.E.2d 1;  see, Prodell v. State of New York, 125 A.D.2d 805, 509 N.Y.S.2d 911).

 When an attorney represents two or more clients with possible adverse interests, the clients should be made aware of the possible conflict and may consent to the dual representation.   However, even where full disclosure has been made and the clients have consented, there are circumstances where the dual representation is so “fraught with the potential for irreconcilable conflict” that it will not be sanctioned (Greene v. Greene, 47 N.Y.2d 447, 451-452, 418 N.Y.S.2d 379, 391 N.E.2d 1355;  see, Prodell v. State of New York, supra, at 806, 509 N.Y.S.2d 911;  see also, Code of Professional Responsibility DR 5-105 [22 NYCRR 1200.24] ).

 The disqualification of the retained attorney from simultaneous representation of the father and mother in this proceeding was improper.   The Family Court failed to make a proper inquiry into whether there was any actual or potential conflict of interest warranting disqualification (see, Matter of Legal Aid Socy. of Orange County v. Patsalos, 185 A.D.2d 926, 587 N.Y.S.2d 943;  Raymond v. Raymond, 174 Misc.2d 158, 662 N.Y.S.2d 1016;  Sports Medicine Serv. of Gramercy Park v. Perez, 172 Misc.2d 126, 657 N.Y.S.2d 314;  Booth v. Continental Ins. Co., 167 Misc.2d 429, 634 N.Y.S.2d 650;  see also, People v. Salcedo, 68 N.Y.2d 130, 135, 506 N.Y.S.2d 154, 497 N.E.2d 292).   Accordingly, the matter is remitted to the Family Court, Queens County, for a hearing on whether the dual representation creates a potential or actual conflict of interest.   Assuming the existence of such a conflict, the Family Court shall advise the father and mother of its possible effects on their legal rights so that they can make a knowing and intelligent decision about whether the dual representation should continue (see, Prodell v. State of New York, supra;  Raymond v. Raymond, supra;  Sports Medicine Serv. of Gramercy Park v. Perez, supra;  Booth v. Continental Ins. Co., supra).   Should it appear that the dual representation is “fraught with the potential for irreconcilable conflict” (Greene v. Greene, supra, at 451-452, 418 N.Y.S.2d 379, 391 N.E.2d 1355), then the father and mother should be permitted to express their position as to who the attorney will represent, or whether they would like to retain new counsel.   In the event that the father and mother fail or refuse to indicate their position on the matter, then the Family Court may disqualify the attorney (see, Matter of Hof, 102 A.D.2d 591, 593, 478 N.Y.S.2d 39;  Russo v. Zaharko, 53 A.D.2d 663, 666, 385 N.Y.S.2d 105).

MEMORANDUM BY THE COURT.

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