In re Adoption of Erica10/31/1997
Essex.
September 4, 1997.
October 31, 1997.
Present: Wilkins, C.J., Abrams, Lynch, Greaney, Fried, Marshall, & Ireland, JJ.
Attorney at Law, Attorney-client relationship, Conflict of interest, Disqualification. Conflict of Interest.
Petition filed in the Essex Division of the Probate and Family Court Department on September 23, 1992.
A motion to review a potential conflict of interest was heard by Edward J. Rockett, J.
The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.
A proceeding was commenced by the Department of Social Services (department) in the Essex Probate and Family Court to dispense with the need for a mother's consent to her child's adoption, G.L. c.210, Section 3. The child, whom we shall call Erica, challenges an order of a judge who concluded that, because Erica's attorney formerly represented Erica's grandfather in other proceedings, the attorney had a conflict of interest. The judge disqualified the attorney and ordered that new counsel for Erica be appointed forthwith. We conclude that there has been no demonstration that Erica's attorney has a conflict of interest, and there is no other reason to justify her disqualification. See S.J.C. Rule 3:07, Canons 4, 5, 7 and 9, as appearing in 382 Mass. 778, 779, 784, 795 (1981). We vacate the order disqualifying the attorney and appointing new counsel.
1. We summarize the procedural history.
Erica was born on June 27, 1988, when her mother, whom we shall call Dana, was seventeen years old. Eight months later, on February 28, 1989, the department filed a care and protection petition pursuant to G. L. c. 119, Section 24, in the Salem Division of the District Court Department and received physical and legal custody of Erica. Erica was returned to the physical custody of Dana on March 2, 1989, and legal custody was returned on April 27, 1989. One year later, on April 23, 1990, the department filed a second care and protection petition in the Salem Division of the District Court and again received temporary physical and legal custody of Erica. On June 7, 1990, Erica was returned to the physical custody of Dana, and the petition was dismissed in September, 1990. In December, 1990, the department filed a third care and protection petition in the same court and once again received physical and legal custody of Erica. Since that time, Erica (then two and one-half years old) has been in the care and protection of the department. She has resided continuously with the same foster family. Erica is now nine years old.
At the commencement of the second care and protection proceeding in April, 1990, Elizabeth B. Dunn was appointed by a judge in the District Court to represent Erica. At the time of her appointment as Erica's attorney, Dunn advised the District Court judge that she formerly had represented Erica's maternal grandfather in proceedings in the Salem District Court.
The department, a party to the proceedings, did not object to the appointment of Dunn. Dunn's representation of the grandfather concluded in 1988, prior to Erica's birth and, of course, prior to the commencement of any of the proceedings involving Erica. According to Dunn, she had no contact with Erica's grandfather after 1988, Erica has never met her grandfather, and the grandfather has not participated in any of the proceedings involving Erica.
On September 23, 1992, the department commenced this action in the Essex Probate and Family Court to dispense with the need for Dana's consent to Erica's adoption. G. L. c. 210, Section 3. On December 7, 1992, the department, cog
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