State Bar Association
Personal conflict of interest
A lawyer who serves as a foster parent may maintain a practice as an
Attorney for Children and as the representative of other persons in proceedings
in the Family Court of the same county.
But if a reasonable lawyer would conclude, in relation to any given
client, that a significant risk exists that the lawyer’s professional judgment
on behalf of the client will be adversely affected by his or her personal
interest as a foster parent, the lawyer may not represent the affected client
unless the lawyer reasonably believes that he or she can provide competent and
diligent representation and the affected client gives informed consent
confirmed in writing.
1.7(a) & (b)
1. The inquirer, a family law practitioner,
is considering serving as a foster parent under various provisions of the
Family Court Act and the Social Services Law.
The inquirer practices in the same county where she resides (and where
she would serve as a foster parent).
2. The county commissioner of social
services, as head of the county department of social services, or his or her
delegate (collectively, the Commissioner) appears on behalf of the county in
many of the family law actions in the inquirer’s practice, including
proceedings under Article 10 (Child Protective Proceedings) and Article 10-A
(Permanency Hearings for Children Placed Out of Their Homes) of the Family
Court Act. Consequently, both the
Commissioner and the inquirer appear on behalf of their respective clients in
all Article 10 and 10-A proceedings concerning children for whom inquirer has
been named attorney.
3. The county also acts as the foster care
agency. The Commissioner, as legal
custodian of children who have been removed from their family home, has broad
and continuing responsibility for the welfare of those children and,
consequently, an active role with respect to the recruitment, training and
licensure of foster parents, their selection and appointment as such by the
court, oversight and compensation of the foster home, and termination of the
foster relationship in favor of another or the conversion of the relationship
to a permanency proceeding, among other duties.
4. May a lawyer (i) maintain a practice as an
Attorney for Children (f/k/a a Law Guardian) and as a representative of other parties
in proceedings under Articles 10 and 10-A of the Family Court Act and (ii)
concurrently serve as a foster parent in a jurisdiction in which the county
department of social services acts as the foster care agency?
5. As Attorney for a Child, the inquirer’s
duty is to exercise professional judgment solely in the best interests of the
child, both as a matter of ethics, see
Rule 1.7 and Comment  thereto, and as a matter of law, see, e.g., Family Court Act §§1016, 1033-b.) As a would-be foster parent, as a current
foster parent, or as a current foster parent desirous of becoming the adoptive
parent of a foster child, inquirer has a personal interest in preserving and
strengthening the foster relationship and in satisfying the Commissioner.
6. Rule 1.7(a)(2) of the New York Rules of
Professional Conduct (the “Rules”) provides that, without the consent of the
client, a lawyer may not represent a client (or, if the risk becomes apparent
only after the representation has been commenced, continue the representation,
reasonable lawyer would conclude that . . . there is a significant risk that
the lawyer’s professional judgment on behalf of a client will be adversely
affected by the lawyer’s own financial, business, property, or other personal
7. Often, the inquirer’s role as a foster
parent will have no effect on her professional judgment on behalf of clients in
her role as an Attorney for Children (or other parties to Family Court
proceedings). However, from time to
time, the dual roles may raise potential conflicts of interest. Although both the inquirer and the
Commissioner must act in the best interests of the child in proceedings under
the Family Court Act, at times, their professional interests or their views of
the child’s best interests may differ.
In addition, there may be circumstances where the interests of the
inquirer as Attorney for a Child and the inquirer’s personal interests might
differ. For example, such a circumstance
might occur if the social worker overseeing inquirer’s foster care were to
testify in another proceeding adversely to inquirer’s client in that other
proceeding, thereby requiring inquirer to cross examine (or to forbear from
cross examining) the social worker. See N.Y. State 790 (2005).
8. The Committee believes that, in many
instances, a reasonable lawyer would deem the conflict between the inquirer’s
personal interests as a foster parent and her professional responsibility to a
client in Article 10 and Article 10-A proceedings to be theoretical and remote
and unlikely to affect the lawyer’s professional judgment on behalf of the
child (or another client) for which she is attorney. If there is “no significant risk” of an
adverse effect, objectively determined, an attorney who is a foster parent may
undertake and continue representations of children and adults in Article 10 and
Article 10-A proceedings without the need to obtain informed client
consent. See N.Y. State 790 (2005).
9. If, to the contrary, a reasonable lawyer
would conclude there is a significant risk that the inquirer’s professional
judgment on behalf of any client will be affected by her interests as a foster
parent, the inquirer would be required either to decline or to withdraw from
representation of the client or, where permissible, seek client consent to the
representation notwithstanding the conflict.
10. While the issue of whether an individual,
adult or minor, has the capacity to give the necessary informed consent is
beyond the scope of this opinion, the reader’s attention is invited to the
helpful discussion of the issue of a minor’s capacity to give informed consent
in N.Y. State 1069 (2015) ¶¶20-27. See also Roy D. Simon, Simon’s New York
Rules of Professional Conduct Annotated (2016 ed.) pp. 467-468.
11. A lawyer who serves as a foster parent may
maintain a practice as an Attorney for Children and as the representative of
other persons in proceedings in the Family Court of the same county, unless a
reasonable lawyer would conclude, in relation to any given client, that a
significant risk exists that the lawyer’s professional judgment will be
adversely affected by his or her personal interest as a foster parent. If a reasonable lawyer would conclude that
such a significant risk exists, the lawyer may, nevertheless, represent the
affected client, provided that the lawyer reasonably believes that he or she
can provide competent and diligent representation and the affected client gives
informed consent confirmed in writing.