In re Jasmine S.

• Citation: 152 Cal.App.4th 297,61 Cal.Rptr.3d 256
• Decision Date: 19 June 2007
• Docket Number: No. B194714.,B194714.
• Court: California Court of Appeals
• 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, Objector and Appellant.

61 Cal.Rptr.3d 256

152 Cal.App.4th 297

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, Objector and Appellant.

No. B194714.

Court of Appeal, Second District, Division 5.

June 19, 2007.

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

Raymond G. Fortner, Jr., Los Angeles County Counsel, Tracey Dodds, Principal Deputy County Counsel, for Plaintiff and Respondent.

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

Christopher Blake, under appointment by the Court of Appeal, San Diego, for Minor Lou D.

MOSK, J.

INTRODUCTION

This is one of eight 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). In the first appeal, In re Charlisse C. (2007) 149 Cal.App.4th 1554, 58 Cal.Rptr.3d 173 (Charlisse), this court reversed the order disqualifying the Center in a case involving a purported conflict arising from the successive representation of two clients with adverse interests. We now consider, on essentially the same record before us in Charlisse, whether the juvenile court erred in disqualifying one of the Center's independent 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 independent unit of the Center. The Center had created these independent units to enable it to provide, in the same proceeding, legal representation to multiple clients who might have conflicts. As in Charlisse, we reverse the disqualification order.

We hold that, consistent with California Rules of Court, rule 5.660(c)¹ and the California Supreme Court's decision in In re Celine R. (2003) 31 Cal.4th 45, 1 Cal. Rptr.3d 432, 71 P.3d 787, 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. Further, there is no substantial evidence to support the conclusion that the Center's current structure and operating procedures are not consistent with the safeguards against conflicts approved in Castro v. Los Angeles County Bd. of Supervisors (1991) 232 Cal.App.3d 1432, 1435-1445, 284 Cal.Rptr. 154 (Castro), and People v. Christian (1996) 41 Cal. App.4th 986, 991-1002, 48 Cal.Rptr.2d 867 (Christian). Absent evidence of a material, ongoing breach of the Center's ethical screens or a breach related to the particular case at issue, the Center's three independent units should not be treated as a single firm for conflict purposes.

BACKGROUND

The lead and dissenting opinions in Charlisse contain facts relating to the Center in addition to those we set forth below. (Charlisse, supra, 149 Cal.App.4th at pp. 1560-1565, 58 Cal.Rptr.3d 173 (lead opn. of Mosk, J.) and at pp. 1583-1598, 58 Cal. Rptr.3d 173 (dis. opn. of Turner, P.J.).)²

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. 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 independent 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

These proceedings 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 that the juvenile court heard the motion to disqualify the Center in Charlisse, supra, 149 Cal. App.4th 1554, 58 Cal.Rptr.3d 173. In that case, a child's mother sought to disqualify the Center's Unit 3 from representing the child on the ground that the Center's Unit 1 had previously represented the mother. (Id. at pp. 1562-1564, 58 Cal.Rptr.3d 173 (lead opn. of Mosk, J.).) The juvenile court granted the motion to disqualify, stating that the Center's "ethical walls may have been breached" giving the "appearance of conflict." (Id. at p. 1564, 58 Cal.Rptr.3d 173.)

In this case, none of the parties 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, based on what she "heard happening in another case in this courtroom" — presumably Charlisse, supra, 149 Cal.App.4th 1554, 58 Cal. Rptr.3d 173 — she had checked the "email list for CLC2's supervisors" to see if Miriam Krinsky, the Center's Executive Director, was on the list, and discovered that the list included Krinsky. Lorson represented to the juvenile court that she had sent "confidential, case specific" information to those on the list. Lorson said that she was not aware that Krinsky was on the list and had not even known how to check who was on the list until that day.

Lorson apparently showed the juvenile court a roster she had printed from her Microsoft Outlook e-mail program, which the juvenile court marked as an exhibit and lodged.⁴ The juvenile court was unsure of the significance of the document "pending further exploration of its authenticity, genuineness and relevancy." The juvenile court received no further evidence relating to the document, and the document itself was not included in the record on appeal. Nevertheless, the juvenile court continued the PRC to September 29, and ordered all three of the Center's units to show cause why they — presumably the entire Center — should not be recused from the case.

Evidence submitted by the Center prior to the next hearing on September 29 indicated that the e-mail list that Lorson had referred to was a non-confidential e-mail list for CLC Unit 2 supervisors. Each of the Center's three units also had a separate "case-confidential" e-mail group. Email transmitted through a unit's case-confidential e-mail group went only to people in that unit. The Center's policy — applicable to each unit and communicated by directives to the staff — was that e-mails regarding case-specific matters or containing confidential information were to be transmitted only through the case-confidential e-mail groups. Krinsky was not a recipient of any of the case-confidential email groups. Krinsky further declared that "[w]henever I receive a misdirected email, it is my practice to immediately delete it. I have no recollection of any case specific information that might have been contained in any of those few isolated misdirected emails over the years."

At the September 29 hearing, Lorson stated the she "did not request to be relieved," but had informed the juvenile court of her concern about the e-mail group because she felt it her duty to do so after hearing the juvenile court's disqualification order in Charlisse, supra, 149 Cal. App.4th 1554, 58 Cal.Rptr.3d 173. 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 stated that the Center's evidentiary submissions "highlight and put an exclamation point on the need for amendments to the [Center's] operating rules and procedures." Referring to the evidence submitted...