In re Jasmine S., B194714 (Cal. App. 7/25/2007)

• Decision Date: 25 July 2007
• Docket Number: B194714
• Parties: In re JASMINE S., et al., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. ANNA P., et al., Defendants; CHILDREN'S LAW CENTER OF LOS ANGELES, Objector and Appellant.
• Court: California Court of Appeals Court of Appeals

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In re JASMINE S., et al., Persons Coming Under the Juvenile Court Law.

LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. ANNA P., et al., Defendants;

CHILDREN'S LAW CENTER OF LOS ANGELES, Objector and Appellant.

B194714

Court of Appeals of California, Second District, Division Five

Filed July 25, 2007

Appeal from an order of the Superior Court of Los Angeles County, No. CK64333, Stanley Genser, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Reversed.

Akin Gump Strauss Hauer & Feld, Rex S. Heinke and Seth M. M. Stodder for Appellant.

Raymond G. Fortner, Jr., Los Angeles County Counsel, Tracey Dodds, Principal Deputy County Counsel, for Respondent Department of Children and Family Services.

Merrill Lee Toole, under appointment by the Court of Appeal, for Respondent Jasmine S.

Christopher Blake, under appointment by the Court of Appeal, for Respondent Lou D.

MOSK, J.

INTRODUCTION

This is one of a number of appeals by the Children's Law Center of Los Angeles (the Center or CLC), all from orders of the juvenile court disqualifying the Center from representing children in dependency proceedings because of purported conflicts of interests (conflicts).¹ We consider whether the juvenile court erred in disqualifying one of the Center's units in a case involving the concurrent representation of two clients, siblings Jasmine S. and Lou D. (the children), with potentially adverse interests. The children were each represented by a different unit of the Center. The Center had created these units to enable it to provide, in the same proceeding, legal representation to multiple clients who might have conflicts. The juvenile court, questioning the integrity of the ethical walls between the Center's units, based its disqualification on what it determined was an "appearance" of a conflict. We reverse the disqualification order.

We hold that, consistent with California Rules of Court, rule 5.660(c)² and the California Supreme Court's decision in In re Celine R. (2003) 31 Cal.4th 45, an attorney representing multiple siblings in dependency proceedings may be disqualified only if the siblings have an actual, present conflict of interest. A mere potential conflict does not warrant disqualification. The juvenile court found no actual conflict in this case.

BACKGROUND

The Center is a publicly funded, nonprofit law office that represents parties in the Los Angeles County Juvenile Dependency Court when legal services are required under Welfare and Institutions Code section 317. The Center formerly was called Dependency Court Legal Services (DCLS). Pursuant to two agreements, first with the Los Angeles County Board of Supervisors and now with the Administrative Office of the Courts, the Center has been structured into three separate units, designated CLC Units 1, 2, and 3, to permit the Center to provide legal representation to multiple children in the same dependency proceeding, even if the children have conflicting interests.³

The proceedings in this case commenced on July 18, 2006, when Jasmine was 14 years old and her half-brother Lou was 11. The Los Angeles County Department of Children and Family Services (DCFS) filed a petition pursuant to Welfare and Institutions Code section 300 with respect to both children, alleging that the children's mother (mother) had neglected the children, that mother and Lou's father both had a history of drug abuse and violent domestic altercations, and that Lou's father had a history of drug-related criminal convictions. Jasmine was detained by DCFS. Lou could not be located and was "detained at large."

At the detention hearing on July 18, the juvenile court appointed CLC Unit 1 attorney Jody Leibman to represent Jasmine. The juvenile court ordered the children detained and issued a protective custody warrant for Lou. Jasmine was placed with her maternal aunt. Mother voluntarily surrendered Lou into DCFS custody on August 14. Lou did not wish to be placed with his aunt, with whom Jasmine was placed, alleging that his aunt "hits on" him. He was placed in foster care. Mother admitted she had an unresolved substance abuse problem and had recently used cocaine. Both children stated that they did not want to live with mother. DCFS filed an amended petition on August 21, which, among other things, added an allegation that mother had inappropriately disciplined the children by striking them with a closed fist and belt.

At the pretrial resolution conference (PRC) on August 21, the juvenile court appointed CLC Unit 2 attorney Jennifer Lorson to represent Lou. During the hearing, Lorson stated that Lou did not want to live with his maternal aunt because "she has used corporal discipline on him." The record does not reflect why the juvenile court appointed separate counsel for Lou. No one raised a conflict issue at the August 21 hearing.

The PRC was continued to September 18, at which hearing Lou reversed his prior position and requested to be placed, along with Jasmine, in their maternal aunt's home. The juvenile court deferred Lou's request pending further investigation. No one raised a conflict issue at the September 18 hearing.

The PRC was continued again to September 22, the same day as the disqualification hearing in the Charlisse case. None of the parties in this case attended the September 22 hearing — only the attorneys were present. The juvenile court approved the placement of both Jasmine and Lou with their maternal aunt. Lorson, Lou's CLC Unit 2 attorney, then informed the juvenile court that she had discovered evidence that she believed indicated that Miriam Krinsky, the Center's Executive Director, improperly received copies of confidential e-mails sent by Lorson to her supervisors over the CLC Unit 2 supervisors e-mail group. The juvenile court continued the PRC to September 29, and ordered all three of the Center's units to show cause why the Center should not be recused from the case.

Evidence submitted by the Center indicated that the e-mail group Lorson had referred to was a non-confidential e-mail group for CLC Unit 2 supervisors. Each of the Center's three units also had a separate "case-confidential" e-mail group. Krinsky was not a recipient of any of the case-confidential e-mail groups. At the September 29 hearing, the head of CLC Unit 2, Lorson's supervisor, contended that there was no conflict and that the Center should not be disqualified. The juvenile court rejected that contention, stating, "[T]he cases have, especially [City and County of San Francisco v. Cobra Solutions, Inc. (2006) 38 Cal.4th 839], indicated the importance of appearances to the public, since this is a public funded attorney group, it's important to maintain the appearance of no conflict, and instead what we have is the appearance of conflict, inadvertent or otherwise. I don't know. I don't really care. I'm not going to make any findings one way or the other but, clearly, it gives the appearance of a conflict."

The juvenile court continued the matter to October 4 "in order to resolve these apparent conflict issues to see whether or not we can come to some agreement on a way in which [the Center] can represent multiple parties . . . ." At the October 4 hearing, the heads of CLC Units 1 and 2 both objected to being recused, arguing that there was no actual conflict. The juvenile court nevertheless disqualified CLC Unit 1, and appointed a new attorney for Jasmine. The juvenile court stayed the disqualification issue until October 11 "only as to Lou," so that CLC Unit 2 could obtain a conflict waiver.

At the conclusion of the October 4 hearing, Lorson sought additional guidance from the juvenile court because she was concerned that she might "get dinged by the Bar for not following ethical rules." The juvenile court clarified its ruling: "There's a systemic conflict. There's no actual conflict between the children. . . . [¶] And on occasion it sounds to me as if there's been inappropriate interaction between the three firms, either from the administration, or filtering on down the supervisors, or whatever, so that — nobody can ever prove there's an actual conflict but it certainly gives the appearance of a conflict. [¶] But I have not received any facts that on any specific case there was a breach — there was conflict or breach of the privilege or confidentiality. Certainly, it's — [¶] — the appearance and the ability to cross the ethical wall." The Center timely appealed the juvenile court's order disqualifying CLC Unit 1.⁴

DISCUSSION

A. Standard of Review

"Generally, a trial court's decision on a disqualification motion is reviewed for abuse of discretion. [Citations.] If the trial court resolved disputed factual issues, the reviewing court should not substitute its judgment for the trial court's express or implied findings supported by substantial evidence. [Citations.] When substantial evidence supports the trial court's factual findings, the appellate court reviews the conclusions based on those findings for abuse of discretion. [Citation.] However, the trial court's discretion is limited by the applicable legal principles. [Citation.] Thus, where there are no material disputed factual issues, the appellate court reviews the trial court's determination as a question of law. [Citation.] In any event, a disqualification motion involves concerns that justify careful review of the trial court's exercise of discretion. [Citation.]" (People ex rel. Dept. of Corporations v. SpeeDee Oil Change Systems, Inc. (1999) 20 Cal.4th 1135, 1143-1144; see also City and County of San Francisco v. Cobra Solutions, Inc. (2006) 38 Cal.4th 839, 848.)

B. The Center Has Standing to Seek Appellate Review of the Disqualification Order.

The children contend that the Center lacks standing to appeal the disqualification order. The standing issue arises because neither the children nor the Center's Unit 1, the attorney of record disqualified by the juvenile...