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Is there case law in New York that disqualifies assignment of Attorney for Child, when that attorney is being sued elsewhere?

West Hurley, NY |

I am in a Family Court case, the court is just now assigning an attorney for the child; that attorney however is being sued in a federal lawsuit,
I believe this to be conflict of interest, and I am moving for disqualification.
I found the regulation 22 NYCRR 1200 Rule 1.7, which covers conflict of interest, but I can't find on-point precedent.
Am I right, and is there some otherwise commonly known precedent (NY or 2nd Cir federal) on this point?

I thank the attorneys here for responding, and their comments are helpful. However, I am still wondering if there is some commonly known touchstone precedent; I have done some research and found some cases similar, but I am looking for something on-point to this situation.

Attorney Answers 3

  1. I didn't read your whole 89 page lawsuit megilla there, but skimming it, I wondered what the conflict of interest is. If it's just that an "attorney for the child" finds himself in a lawsuit which seems to be a blunderbuss federal civil rights action against everyone official involved in some other unrelated family court case which has yet to go to trial or otherwise be disposed of, I don't see any conflict. Anyone can sue anybody for anything, and it doesn't mean the lawsuit has merit.

    Unless you are the plaintiff or defendant in this lawsuit and the attorney for the child represents the someone else who is a in your family or a relative or has confidential information about your family situation as a result of his participation in the matter for which he is being sued, I see no conflict.

    I'd also be very careful about impugning the reputation of a Law Guardian based on some unproven and potentially defamatory scuttlebutt that someone has put on the internet which might not be protected from libel even as a public document or litigation pleading. Unless there's some more direct connection of the GAL to your family, I wouldn't mention this in court, much less ask for a recusal or reassignment of GAL. It's only human nature for the GAL to dislike you for doing that, and having him dislike you won't be helpful, even though he's supposed to just focus on your child's wishes and welfare. It's human nature not to like people who are slandering or gossiping about you based on biased and possibly incorrect facts.

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  2. No. I briefly skimmed a few pages, but it seems like something that is likely to get thrown out. Like counsel noted, any one can sue anyone for anything, that doesnt make it true. Is everything your ex says about in this case true? Regardless, unless the AFC represented you or your ex or has some other connection to your family, you wont get him or her disqualified. The only thing you will probably do is anger them, and since their opinion is given substantial weight, that is not going to help your case, particularly if your children are young enough where the AFC can substitute judgment for them.

  3. The fact that the same AFC is being sued in another court, doesn't create a conflict of interest. A person is always innocent until proven guilty so filing of a lawsuit doesn't create guilt. Also, it is not generally a good idea to object to any particular law guardian because it usually comes across as one party posturing for an advantage over the other person. The AFC is there to (presumably) represent the best interests of the child, not the interests of the parents and when one parent accuses the AFC of not looking out for the child's interest, it usually sounds as if you're really saying that the AFC is not supporting your position in the case. Ultimately, if you feel that the child's wishes are not truly being represented, either party can request a Lincoln Hearing where the Judge will speak to the child in his/her chambers with only the AFC present (not the parents). This allows the child to say what he/she really feels without the parents hearing. Also, keep in mind that sometimes children tell parents what they want to hear because they are afraid of hurting feelings.