Editor's Note:
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.
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May a lawyer representing a client in a child custody proceeding properly notify the court of conflicting interests disclosed by the confidences or secrets of his client?
A lawyer representing a client in a child custody proceeding may not properly notify the court of conflicting interests disclosed by the confidences or secrets of his client.
American Bar Association Code of Professional Responsibility, Disciplinary Rule 4-101(A).
Business and Professions Code section 6068, subdivision (e), and Civil Code section 4600.
The inquirer asks:
When a lawyer representing a client in child custody proceedings discovers conflicting interests of his client and the child, may he ethically notify the court of the conflict and suggest court appointment of a separate lawyer for the child?
The Committee is of the opinion the attorney may not.
A child need not be represented in adversary proceedings involving his custody, despite the fact he is vitally interested in the outcome of the proceedings. Nor is there any implication that a lawyer representing a parent or other contestant in child custody proceedings concurrently represents the child and must protect the child's interests. Presumably, the child is protected by the requirements of the substantive law providing custody is to be awarded "according to the best interests of the child." (Civ. Code, 4600.)
Unquestionably, the interests of the child and of the parent or other party seeking custody can be in conflict. For instance, in custody proceedings arising out of dissolution of marriage, the child's interests could conflict with the interests of one or another of his parents in that it might be in the child's best interests that custody be awarded to one parent rather than to the other or that the child support payments be high. (A Divorce Reform Act, 5 Harvard J. Legis. 563 (1968); see also Kleinfeld, The Balance of Power Among Infants, Their Parents and The State (1976) 4 Family L.Q. 319 and Hatherly, The Role of the Child's Wishes in California Custody Proceedings (1973) 6 U.S. Davis L. Rev. 332.)
Accordingly, it is assumed by the Committee that the conflicting interests suggested by the inquirer arise from information received by the lawyer suggesting that it would not be in the best interests of the child that his client have custody of the child, or that other interests of the child, in good conscience, require independent representation.
For purposes of this opinion, it is further assumed that the lawyer discovered the conflicting interests of his client and the child from confidences or secrets gained from the client. Such confidences and secrets are broadly defined in American Bar Association Code of Professional Responsibility, Disciplinary Rule 4-101(A), as follows:
"'Confidence' refers to information protected by the attorney-client privilege under applicable law, and 'secret' refers to other information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client."
It is likely that the information indicating conflicting interests gained by the lawyer would come within this broad definition of confidences and secrets.
Canon 4 of the American Bar Association Code of Professional Responsibility, and its associated ethical considerations and disciplinary rules, makes it clear that such confidences and secrets may not be disclosed. Canon 4 provides:
"A lawyer should preserve the confidences and secrets of a client."
Moreover, section 6068, subdivision (e), of the California Business and Professions Code provides that it is the duty of a lawyer:
"To maintain inviolate the confidence, and at every peril to himself to preserve the secrets, of his client."
Accordingly, the lawyer may not notify the court of the conflicting interests. Thus, in American Bar Association informal opinion No. 869 (1965), the Standing Committee on Professional Ethics concluded that the rule against disclosure of confidential communications precluded a lawyer in custody proceedings from disclosing to the court the admitted adultery of his client, even under circumstances where the applicable state law held that adultery renders a person unfit to be awarded custody of children.
Further, any disclosures of confidential or secret information could be contrary to American Bar Association Code of Professional Responsibility, canon 7, which provides:
"A lawyer should represent a client zealously within the bounds of the law."
The voluntary disclosure by the lawyer of information detrimental to the client's case, against the wishes of the client, would be inconsistent with such zealous representation.
Arguably, the simple suggestion to the court that counsel be appointed for the child is not disclosure of confidences or secrets. However, under circumstances where appointment of separate counsel for the child is highly unusual and the only reason for such appointment is to protect the interests of the child against possible conflicting interests of the lawyer's client, it is the opinion of the Committee that, in most situations, the suggestion is tantamount to disclosure and is prohibited. (Cf. ABA Committee on Prof. Ethics, opn. No. 90 (1932).)
The lawyer should do everything in his power to persuade his client that arrangements should be made for the child to be separately represented. However, if the client is not persuaded to make such arrangements, the lawyer cannot ethically suggest representation of the child to the court.
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.
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