Representing the Child and her Guardian: Conflict of Interest?

On August 19, 2015, the New York State Bar Association issued a formal ethics opinion, which advises that an attorney who represents a child in Federal Immigration Court may also be competent to simultaneously represent the proposed guardian of the child in State Family Court proceedings. The opinion conducts a traditional conflicts of interest analysis to conclude that the representation is permissible as long as both parties provide informed written consent and the attorney reasonably believes he or she can competently and diligently represent both clients at the same time. While the opinion employs a traditional analysis, it also notes the unique issues that may arise when representing a minor in an immigration proceeding.

The opinion addresses conflicts of interest that may occur when a lawyer represents a child who is attempting to qualify for a deportation exception called the “Special Immigrant Juvenile Status” (SIJS). SIJS permits minors who have been abused, neglected, or abandoned by their parents in their country of origin and who are declared dependent on a juvenile court to obtain permanent legal status in the United States.

The procedure for obtaining SIJS in Federal Immigration Court proceedings includes the appointment of a guardian through Family Court. Although the proposed guardian and child often have a common goal, the child and guardian may have differing interests posing a potential conflict of interest for a lawyer representing both parties.  For example, the child may not want a guardian or may prefer another adult to be appointed as her guardian.

To obtain the child’s consent to the simultaneous representation, the lawyer must fully disclose the material risks and reasonably available alternatives. Then, the lawyer must believe that the child has the capacity to understand the conflict and make a reasoned decision to consent, and the consent must be voluntary. The opinion noted that there are opinions finding that a minor may not have capacity to consent and that there is no specific age at which a child may have such capacity; however, generally a verbal child who is twelve years or older will be capable to make a reasoned decision in this situation.

Click here to read the full text of the opinion.

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