Borden v. Borden
| Decision Date | 05 May 1971 |
| Docket Number | No. 5417.,5417. |
| Citation | 277 A.2d 89 |
| Parties | Helen BORDEN, Appellant, v. George BORDEN and Mary Theresa Hawkins, Appellees. |
| Court | D.C. Court of Appeals |
No appearance was entered for appellees.
Allan Ashman and John M. Joyce, Washington, D. C., counsel for National Legal Aid and Defender Association, filed a brief as amicus curiae.
Sherman L. Cohn, Washington, D. C., also entered an appearance for National Legal Aid and Defender Association and filed an amicus curiae brief as counsel for the Federal Bar Association's National Committee on Legal Assistance to the Poor.
Terry F. Lenzner, Jason I. Newman and Benjamin Stein, counsel for the Office of Economic Opportunity, filed a brief as amicus curiae.
Before KERN, GALLAGHER and NEBEKER, Associate Judges.
The issue presented by this appeal is whether it was error for the trial judge sitting in the Domestic Relations Branch of the District of Columbia Court of General Sessions to refuse to vacate his order assigning an attorney employed by the Neighborhood Legal Services Program (NLSP) to represent the defendant in this action, when the plaintiff was already represented by an NLSP lawyer.
On September 22, 1969, appellant Helen Borden filled a complaint seeking a divorce from appellee George Borden on the ground of adultery. On April 2, 1970, appellant, represented by an attorney from NLSP and proceeding in forma pauperis, moved for assignment of counsel to represent appellee and his co-respondent1 and for waiver of the payment of the minimum fee required by G.S. Civ.Rule 5(a) to be paid by an applicant for divorce2 The trial court ordered David S. Raycroft, an attorney employed by the NLSP, to enter an appearance on behalf of and represent appellee. On June 8, 1970, appellant's attorney, joined by appellee's attorney, filed a motion to set aside the trial court's order of appointment of counsel on the ground that since both attorneys in the case were employed by the NLSP the order created a conflict of interest under the Code of Professional Responsibility,3 and the divorce ultimately obtained could be invalid due to alleged collusion.
On June 9, 1970, the trial judge denied the motion to set aside his appointment of counsel, relying specifically on his order in another case, McGee v. McGee, D.C. Gen.Sess., 98 Wash.L.Rptr. 929 (May 26, 1970), which stated, inter alia:
Since, therefore, no economic conflict exists, no corporate interests is in any way involved and no legal partnership as such has been disclosed it would appear that in fact and objectively speaking there is no conflict of interest.
Mrs. Borden appeals from this order of denial.
While the trial court's refusal to set aside his order of appointment is not final in the sense of disposing of the case on its merits, Lee v. Zentz, D.C.Mun.App., 44 A.2d 872 (1945), it does have "a final and irreparable effect upon the rights of the parties" and is therefore appealable. Raney v. D.C. Transit System, Inc., D.C. Mun.App., 166 A.2d 261, 262 (1960). The effect of the trial court's order is to force the parties to go to trial represented by attorneys who practice law within the same organization, which appears on its face to constitute a conflict of interest, and who have stated upon the record their inability to represent the cause of their clients and remain faithful to the Code of Professional Responsibility. In addition, the parties have ground for concern that the final decree in the case on the merits could be subject to the subsequent charge of collusion and its validity thus put in question. Jones v. Jones, 20 App.D.C. 38 (1902). We think that the administration of justice would best be served by recognizing the cloud which the order of appointment of counsel has put upon the present proceedings and by treating the order as final for the purpose of review. See Gillespie v. United States Steel Corp., 379 U.S. 148, 152, 85 S.Ct. 308, 13 L.Ed.2d 199 (1964).
Turning to the merits of the assignment of counsel order, it is axiomatic that members of the same law firm may not represent adverse parties. ABA Code of Professional Responsibility (Final Draft, July 1, 1969) p. 67, fn. 2 and pp. 70-71, fn. 29; ABA Standards Relating to the Prosecution Function and the Defense Function (Tent. Draft, March 1970), p. 214. Corporation Counsel4 concedes this but takes the position that:
NLSP cannot be analogized to the typical law firm for purposes of application of the conflict-of-interest concept * * * [NLSP's] activities more logically fall within the group legal services concept. (Respondent's brief at 4-5).
It argues that under N.A.A.C.P. v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963), the constitutional right being asserted must be balanced on the scale of public interest against the alleged professional impropriety. When this is done, in the instant case, so the argument goes, the right and need of the poor to have legal representation in domestic relations matters is paramount to the allegedly remote possibility of a conflict of interest growing out of the representation of both parties by NLSP attorneys. It is pointed out that since NLSP attorneys receive no compensation from their clients there can be no economic conflict of interest, as would be the case if they were practicing in the same law firm.
We are not persuaded that the possibility of conflict of interest which appellee's attorney proffered as his reason for wishing to withdraw from participation in this case is remote.5 While the NLSP is not a law firm it is a group of attorneys practicing law together in an organizational structure much like a law firm. It has a Board of Directors and an Executive Director who are analogous to a firm's managing partners. ABA Formal Opinion 324, p. 6 (August 9, 1970). It has one attorney in each of its branch offices whose responsibility is to supervise the junior attorneys, much like a firm's senior partner working with his associates. All NLSP attorneys participate in office meetings and receive intra-office communications on substantive law, litigation techniques and tactics and office policy.6 Lawyers who practice their profession side-by-side, literally and figuratively, are subject to subtle influences that may well affect their professional judgment and loyalty to their clients, even though they are not faced with the more easily recognized economic conflict of interest.7 In addition the appointment of attorneys who work together presents an impression scarcely consistent with the bar's efforts to maintain public confidence in the law and lawyers.8
Also we fail to find in this case the extraordinary circumstances present in N.A.A.C.P. v. Button, supra, where legal representation to vindicate constitutional rights of a group of citizens was simply unavailable except in the form of group legal services which the State contended amounted to barratry, maintenance and champerty. With all deference to the trial court's efforts to date to assure full representation of all who seek access to the Domestic Relations Court we are not persuaded that the supply of attorneys available in the District of Columbia has been exhausted9 so that NLSP attorneys must now represent both sides of a divorce action.
Finally, we are reluctant to approve any action in the matter of professional ethics which distinguishes between attorneys who are in private practice and attorneys who are not. See American Employers Ins. Co. v. Goble Aircraft Specialties, 205 Misc. 1066, 1075, 131 N.Y.S.2d 393, 401 (1954) () In the first place, Congress has expressly recognized that "anti-poverty lawyers" are to be governed by the traditional standards of the profession. 42 U.S.C. § 2809(a) (3). The ABA has held that legal aid attorneys have a "primary obligation of loyalty" to their clients and are required "to act in accordance with the Code of Professional Responsibility." ABA Formal Opinion 324, supra at 8. Other jurisdictions have specifically barred anti-poverty...
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