State Bar Ethics Opinions cite the applicable California Rules of Professional Conduct in effect at the time of the writing of the opinion. Please refer to the California Rules of Professional Conduct Cross Reference Chart for a table indicating the corresponding current operative rule. There, you can also link to the text of the current rule.
Ethical considerations involved in the representation of minors by a district attorney "in the interest of the state" in proceedings under section 300 of the Welfare and Institutions Code.
In proceedings under section 300 of the Welfare and Institutions Code, where the district attorney represents a minor in the interest of the state, the district attorney should consider whether there may be a conflict between the interests of the minor and those of the state and, where there is doubt, request the consideration and approval of the representation by the juvenile court.
Rule 5-102(B) of the Rules of Professional Conduct of the State Bar.
Welfare and Institutions Code section 300, et seq.
The Committee has been asked whether a district attorney may properly, and without violating rule 5-102(B) of the Rules of Professional Conduct, represent a minor in proceedings brought under the dependent children provisions of the Welfare and Institutions Code. (Calif. Welf. & Inst. Code, 300-553.2.) Under these provisions, hearings are held to determine whether a minor is a dependent child within the jurisdiction of the juvenile court and whether a minor who has been taken into custody (but who has not then been found to be a dependent child) should be further detained. At the request, or with the consent, of the juvenile court, the district attorney may represent the minor at these hearings if the parents, guardian or other person having responsibility for the minor "is charged in a pending criminal prosecution based upon unlawful acts committed against the minor." (Id., 318, 351.) Where the district attorney represents the minor at a juvenile court proceeding, section 351 of the Welfare and Institutions Code requires the representation to be "in the interest of the state" and requires the juvenile court's consent or approval of the terms of the representation. Representation of a minor at a detention hearing may obligate the district attorney to represent the minor "at all subsequent proceedings before the juvenile court." (Id., 318, subds. (b) and (c).)
The request for the opinion of this Committee sets forth the following hypothetical situation:
A minor, 16 years of age, has been in a foster home for three years as a dependent child. At the minor's third annual review to determine whether the juvenile court's continued jurisdiction over the minor is required, the parents of the minor request that the minor be returned to their home. The parents are represented by the public defender. The minor is represented by the district attorney, pursuant to sections 318 and 351 of the Welfare and Institutions Code. The district attorney does not represent any other party to the proceeding. A social worker or probation officer submits a written report recommending that the minor remain in the foster home. The district attorney states to the referee of the juvenile court at the time of the hearing that he or she concurs with the written report and its recommendations. The minor desires to return to the parents' home and has told this to the district attorney. However, the district attorney does not indicate the minor's desire to the court. That information is developed by questions to the minor from either the referee or the public defender. When questioned about the minor's desire, the district attorney states that it would be unwise for the minor to return to the parents' home.
The inquirer has asked several questions pertaining to this hypothetical situation. Many of these call for the Committee's consideration of questions of law which are beyond the purview of the Committee. Accordingly, the Committee has in this opinion limited its consideration to the applicability of rule 5-102(B) of the Rules of Professional Conduct, which provides:
"A member of the State Bar shall not represent conflicting interest, except with the written consent of all parties concerned."
Where the district attorney represents the minor pursuant to sections 318 and 351 of the Welfare and Institutions Code, that representation is, by statute, required to be "in the interest of the state." Where the interests of the minor are in conflict with "the interest of the state," the representation may be proscribed by rule 5-102(B) of the Rules of Professional Conduct, even though the only "party" represented by the district attorney is the minor.
The phrase "in the interest of the state" is not defined by statute and, therefore, the district attorney may not be able to determine whether a conflict exists. Nevertheless, we believe the district attorney should attempt to determine whether any such conflict exists. At a minimum, the district attorney should consider whether the actions or positions which the district attorney should take on behalf of the minor conflict with the district attorney's prosecutorial function. (See 57 Ops. Cal. Atty.Gen. 193, 197 (1974). If the district attorney is unable to determine that a conflict exists, the district attorney should request the juvenile court to consider and approve the propriety of the district attorney's representation of the child.
This opinion is issued by the Standing Committee on Professional Responsibility and Conduct of The State Bar of California. It is advisory only. It is not binding upon the courts, The State Bar of California, its Board of Governors, any persons or tribunals charged with regulatory responsibilities, or any member of the State Bar.
I dissent. In my opinion the district attorney's failure to advocate his minor client's position before the court and his tacit approval of a finding contrary to the minor's position is a breach of his professional responsibilities under rule 6-101(2) of the Rules of Professional Conduct which provides, in part:
"A member of the State Bar shall not wilfully ... fail to use reasonable diligence and his best judgment .. . in an effort to accomplish ... the purpose for which he is employed."
The Committee conceives the district attorney as having a dual role because of the curious language of Welfare and Institutions Code section 351 which authorizes his representation of a minor "in the interests of the State." But section 351 of the Welfare and Institutions Code only applies when someone is charged, "in a pending criminal prosecution based upon unlawful acts committed against the minor." Nothing in the factual situation presented here suggests there is a pending criminal action at the time of this third annual review. Hence, there is no prosecutorial function. Nor is there a need to guess what possible "interests of the State" require that an attorney withhold his client's desire to go home to live with his parents from the very court deciding where the child will live.
The factual situation we are given reflects a mere difference of opinion between the district attorney who believes his client should remain in the foster home and the client who wants to go home. I do not perceive that difference of opinion as "conflicting interests" within the meaning of rule 5-102(B) of the Rules of Professional Conduct. Indeed, much of the lawyer's art is in the ability to resolve these differences in confidential discussions with the client well before their appearance in court, where a client seemingly should be able to expect his lawyer to be on his side. Therefore I see no conflict issue to be presented to the court for resolution. To disclose this difference of opinion to the judge cannot help but hurt the client's cause. What judge is going to be favorably impressed when the district attorney tells him that the district attorney thinks the client is wrong?
If the district attorney feels so strongly about where his client lives that he cannot provide the level of advocacy required by rule 6-101(2) of the Rules of Professional Conduct, there is authority for him to withdraw. (See People v. Munoz (1974) 41 Cal. App.3d 62 [115 Cal.Rptr. 726].) If he chooses this course, he should withdraw without telling the court the reason for his withdrawal. (See Uhl v. Municipal Court (1974) 37 Cal.App.3d 526 [112 Cal.Rptr. 478].)