Opinion  2004-4

(June 2004)

 

The inquirer poses the following question:  A Court of Common Pleas orders a custody evaluation.  Four months later, the evaluator presents a written report along with a bill for services.  A subsequent court order directs the parents to divide the cost of the evaluation on a fifty-fifty basis and pay the bill within 30 days.  Mother pays her half; Father does not.  After 30 days, the evaluator calls Father and Father's attorney, to no avail.  After 90 days, Mother's attorney advises the evaluator that he should bring a contempt action against Father, and that he will represent the evaluator for this action.  Each attorney remains attorney of record; neither has filed a motion to withdraw. 

 

The inquirer's first question is whether a court appointed child custody evaluator has standing to bring a petition pro se in this matter.  The Committee declines to answer this questions as is it one of civil procedure, not attorney ethics question and thus beyond the scope of the Committee's charge.

 

The inquirer then asks whether it is ethical for Mother's attorney to represent the evaluator in the contempt action, specifically whether there is a conflict of interest under Rule 1.7 of the ABA Model Rules of Professional Conduct for one parent's lawyer to represent a custody evaluator in a contempt action against the other parent.

 

The Committee advises that the ABA Rules are a model code, with each state adopting its own version as it sees fit with various changes, deletions and additions.  Pennsylvania attorneys must comply with the Rules of Professional Conduct adopted by the Supreme Court of Pennsylvania (the "Rules").  The Committee's opinion will analyze the situation under the Pennsylvania Rules.

 

The Committee makes the assumption that the custody evaluator's services in the case are completed and the custody evaluator has no ongoing duties in terms of further evaluation in the custody matter.

 

Rule 1.7(a) provides, "A lawyer shall not represent a client if the representation of that client will be directly adverse to another client, unless:  (1) the lawyer reasonably believes the representation will not adversely affect the relationship with the other client; and (2) each client consents after consultation."

 

Rule 1.7(b) provides, "A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer's responsibilities to another client or to a third person, or by the lawyer's own interests, unless  (1) the lawyer reasonably believes the representation will not be adversely affected; and (2) the client consents after full disclosure and consultation.  When representation of multiple clients in a single matter is undertaken, the consultation shall include explanation of the implications of the common representation and the advantages and risks involved." 

 

In examining Rule 1.7(a), the inquirer must first determine if representing the custody evaluator is directly adverse to Mother. In this inquiry, this depends on whether the custody evaluation is favorable to Mother.  If it is not, Mother and the custody evaluator are adverse, not as parties but in the positions they are taking with the court in the custody matter. Under these circumstances, it would seem that the lawyer's representation of the custody evaluator, somebody taking an adverse position against Mother regarding a highly charged emotional issue such as child custody, is clearly adverse for the purposes of the Rule.  In addition it is hard to imagine that this adversity could not but negatively impact the lawyer's relationship with his existing client, Mother. As such, the requirements of a waiver under Rule 1.7(a)(1) can not be met, thus prohibiting the proposed representation of the custody evaluator.

 

Presuming the custody evaluation is favorable to Mother, determining whether acting as the custody evaluator's lawyer would adversely affect the relationship with Mother is again a fact specific analysis.  A significant factor to consider is whether Father's financial resources will be able to fully satisfy any such obligations that Father may have to Mother. If not, Mother and the custody evaluator will be competing for the same pool of resources, which would adversely impact representation of both clients, and thus pose a conflict of interest which would prevent compliance with Rule 1.7(a)(1).

 

Rule 1.7(b) requires the attorney to avoid representing the custody evaluator if that representation may be materially limited by the lawyer's responsibilities to Mother. In addition to the issues raised above concerning Father's financial resources, the inquirer, should the custody evaluation not be favorable to Mother's position, might feel it appropriate to subject the custody evaluator to some form of hostile cross-examination, or take a position on paper challenging the custody evaluator's professional judgment. Not doing so would be compromising the inquirer's representation of the wife, in violation of Rule 1.7(b)(1).  To do so would clearly negatively impact the inquirer's representation of the custody evaluator.  Placing the custody evaluator in any type of negative light, particularly one where the Father would know about it, could only hurt the inquirer's representation of the custody evaluator against Father, perhaps even giving Father some sort of defense in the claim by the custody evaluator.  Again, the conflict of interest can not be overcome.

 

Assuming the report is favorable to Mother, and the financial resources of Father are not at issue, Rule 1.7b2 would require that the inquirer receive the informed consent of the custody evaluator before agreeing to represent the custody evaluator.  However, the Committee's analysis and concerns do not end here. While Rules 1.7a and b do provide for the waiver of conflicts of interest, the Comment to that Rule provides in part that:

 

A client may consent to representation notwithstanding a conflict.  However, as indicated in paragraph (a)(1) with respect to representation directly adverse to a client, and paragraph (b)(1) with respect to material limitations on representation of a client, when a disinterested lawyer would conclude that the client should not agree to the representation under the circumstances, the lawyer involved cannot properly ask for such agreement or provide representation on the basis of the client's consent.  [emphasis added].

 

After careful consideration, the Committee has come to the conclusion that the proposed representation regardless of any conflict of interest waivers, is not ethically permissible, as there are other considerations which the Committee feels can not be overcome. 

 

The stakes and the emotions in a custody dispute run very strong and representation of both parties needs to be clear and unconflicted. For the mother's lawyer to be the focal point of pushing the father into paying the evaluator is only going to make the father angry (or more angry) at the mother and her lawyer.  This will not help resolve the custody situation.

 

In addition the credibility of the evaluator's recommendation could be impaired should the mother's attorney handle the contempt petition.  In the scenario proposed, that evaluation report, rather than being an objective one produced by an unbiased third party, would become the report of somebody allied with the mother's lawyer. In addition, the mother's lawyer could not use the same evaluator again in any matter, since the evaluator would then be a former client, and be perceived to have some allegiance to the mother's attorney. This would pose a conflict of interest between the father's lawyer and the client who needed the custody evaluation.  In addition, a conflict of interest becomes apparent between the mother's attorney and the evaluator as a client, because the proposed representation by mother's lawyer, which would then preclude mother's lawyer from using this custody evaluator again, could in fact impact the future business opportunities of the evaluator.

 

Given these larger considerations, the Committee finds that a disinterest lawyer would in fact conclude that Mother and the custody evaluator should not agree to waive any of the conflicts present.  As such the proposed representation is ethically impermissible.

 

The Philadelphia Bar Association's Professional Guidance Committee provides, upon request, advice for lawyers facing or anticipating facing ethical dilemmas. Advice is based on the consideration of the facts of the particular inquirer's situation and the Rules of Professional Conduct as promulgated by the Supreme Court of Pennsylvania. The Committee's opinions are advisory only and are based upon the facts set forth. The opinions are not binding upon the Disciplinary Board of the Supreme Court of Pennsylvania or any other Court. They carry only such weight as an appropriate reviewing authority may choose to give it.