by Christian, civil trial attorney, RL Johnson
To defend the cause of the weak and fatherless and maintain the rights of the poor and oppressed is the highest calling of the Christian lawyer. Toward this end. I am publishing this series of pieces for lawyers who dedicate a portion of their practice to the service of children.
Look, children are the heritage of Yahweh; the fruit of the womb is a reward.
~ Psalm 127:3 (LEB)
How should the Lawyer-Guardian Ad Litem ("L-GAL") handle conflicts of interests of siblings (e.g., a child makes an allegation of abuse against sibling)?
Controlling legal authority: §17d(1)(d) and MRPC 1.7
§17d(1)(d) requires an L-GAL to:
“meet with or observe the child and assess the child's needs and wishes with regard to the representation and the issues in the case[.]” id.
MRPC 1.7 states:
“(a) A lawyer shall not represent a client if the representation of that client will be directly adverse to another client, unless:
(1) the lawyer reasonably believes the representation will not adversely affect the relationship with the other client; and
(2) each client consents after consultation.
(b) A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer’s responsibilities to another client or to a third person, or by the lawyer’s own interests, unless:
(1) the lawyer reasonably believes the representation will not be adversely affected; and
(2) the client consents after consultation. When representation of multiple clients in a single matter is undertaken, the consultation shall include explanation of the implications of the common representation and the advantages and risks involved.” id.
The L-GAL’s duty as prescribed by MRPC 1.7 may require an L-GAL to decline or withdraw from the representation of one or more children in a sibling group if: (a) the representation of one child will adversely affect the relationship with a sibling(s); or, (b) the representation of one child may be materially limited by the lawyer’s responsibilities to a sibling(s) or to a third person, or by the lawyer’s own interests. A conflict of interest may occur when
the petition or a child alleges harm or threatened harm by a sibling(s); and/or,
having determine the facts of the case as required by §17d(1)(b) and (c), an L-GAL ascertains that the wishes, preferences, or legal interests of a child will be directly adverse to a sibling(s).
Notwithstanding an inherent conflict between siblings, an L-GAL may undertake the representation where each sibling is of sufficient competence, age, and maturity to understand the implications of the common representation and the advantages and risks involved. Additionally, the following must apply:
the L-GAL reasonably believes the representation will not adversely affect the L-GAL’s relationships with the other sibling(s);
the L-GAL reasonably believes the representation will not adversely affect any child in the sibling group; and,
each sibling consents after consultation.
See, e.g., MRPC 1.7(a) or (b); and, §17d(1)(i) and §17d(2).
However, absent the foregoing exception, an L-GAL must not represent a child if the representation of that child will be directly adverse to a sibling.
ENDNOTES
[i] MRE 601 tells us that “[u]nless the court finds after questioning a person that the person does not have sufficient physical or mental capacity or sense of obligation to testify truthfully and understandably, every person is competent to be a witness except as otherwise provided in [the Michigan Rules of Evidence].” id.
[ii] Note that any person who willfully swears falsely in regard to any matter or thing respecting which the oath is authorized or required is guilty of perjury, a felony punishable by imprisonment for not more than 15 years. MCL §750.423. Additionally, a person who intentionally makes a false report of the commission of a crime, or intentionally causes a false report of the commission of a crime to be made, to a peace officer, police agency, or a 9-1-1 operator is guilty of a crime. MCL §750.411a.
[iii] In re Blakeman, 326 Mich App 318, 332-333 (2018), the Michigan Court of Appeals told us that even though a respondent had not been charged with a crime, the privilege against self-incrimination applied throughout the child protection proceeding because “an inculpatory statement by respondent could be used in the future by the . . . prosecutor” (citations omitted; alteration in original). The Blakeman Court recognized two interrelated requirements for a Fifth Amendment violation:
• “compulsion, i.e., evidence that ‘a person is unable “to remain silent unless he chooses to speak in the unfettered exercise of his own will,”’ that is grounded on a penalty exacted for appellants’ refusal to testify.”
• “there must be a penalty exacted on respondent for refusing to admit to the crime sufficient to compel self-incrimination.” In re Blakeman, 326 Mich App at 333-334, 336.
[iv] See Miller, supra at Endnote vi, Appendix G: Applying the Realities of Child Development to Legal Representation: A Quick Reference for Lawyers and Judges.
Helpful Links:
• Christian Legal Society
https://www.christianlegalsociety.org
• The Library of Congress’ website:
https://www.loc.gov/law/help/guide/states.php
• Civil Pro Se Forms
https://www.uscourts.gov/forms/civil-pro-se-forms
• Federal Rules of Civil Procedure
https://www.uscourts.gov/rules-policies/current-rules-practice-procedure/federal-rules-civil-procedure
• Public Access to Court Electronic Records (“PACER”) system
Disclaimer: The information contained in this article is offered for educational purposes only and is not intended to substitute for legal advice and is not customized to your particular needs. Before undertaking self-representation, we urge you to consult with an attorney licensed to practice in your state.