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Sunday, November 27, 2016

NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY VS. G.S. AND K.S. IN THE MATTER OF A.S. AND B.S. A-5222-15T2/


NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY
          VS. G.S. AND K.S. IN THE MATTER OF A.S. AND B.S.
          A-5222-15T2/A-5223-15T2 (CONSOLIDATED)
We review the Family Part's series of orders that concern the potential need to disqualify one or both staff attorneys from the Office of Parental Representation ("OPR") who respectively represent the father and the mother in defending this child welfare case. The conflict-of-interest questions were prompted by defendants' advocacy of competing parenting plans for the future care of their twin children.
With some modification, we affirm the trial judge's determination to conduct a hearing to explore the conflict and waiver issues that arose in this particular case.
We agree with the OPR, the Office of Law Guardian, and the amicus New Jersey State Bar Association that, with appropriate screening measures, the law does not categorically prohibit or even presumptively disfavor two staff attorneys working out of the same OPR regional office from separately defending each of the parents in child welfare cases. In addition, when a significant divergence arises between the parents during the course of such litigation, the actual or potential conflict often may be mutually waivable by those clients, with appropriate consultation and substantiation of that waiver.
We further conclude that the trial court has an appropriate institutional role in assuring that the zealous independence of the staff attorneys will not be compromised, and that the confidentiality of client communications and attorney work product will be scrupulously maintained. The court retains the authority and discretion to conduct a hearing to explore such matters on a case-by-case basis to address specific instances where particularized concerns have arisen about the propriety of ongoing representation by the staff attorneys or the sufficiency of any client waivers.