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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Richard B. v. State, Dept. of Health & Social Services (6/13/2003) sp-5703

Richard B. v. State, Dept. of Health & Social Services (6/13/2003) sp-5703

     Notice:   This opinion is subject to correction  before
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RICHARD B.,                                         )     Supreme
                                   Court No. S-10127
             Appellant,                       )    Superior Court
                              )    4BE-97-84/85 CP
     v.                       )    4BE-86-68 CP
STATE OF ALASKA,                             )    O P I N I O N
SOCIAL SERVICES, DIVISION OF       )     [No.  5703  -  June  13,
             Appellee.                  )
_______________________________    )

          Appeal  from the Superior Court of the  State
          of  Alaska, Fourth Judicial District, Bethel,
          Dale O. Curda, Judge.

          Appearances:   Kathleen A. Murphy,  Assistant
          Public Defender, and Barbara K. Brink, Public
          Defender, Anchorage, for Appellant.   Christi
          A. Pavia, Assistant Attorney General, Bethel,
          and   Bruce  M.  Botelho,  Attorney  General,
          Juneau, for Appellee.

          Before:     Fabe,  Chief  Justice,  Matthews,
          Eastaugh, Bryner, and Carpeneti, Justices.

          CARPENETI, Justice.


          I.   In a termination of parental rights case, the father

whose rights were terminated charges that there was a conflict of

interest because the childrens mother was represented by  a  firm

that  had previously represented the father in a criminal  matter

that  provided one of the bases for termination.  The  imprisoned

father  also challenges the superior courts decision denying  his

request to testify in person. We conclude that the superior court

erred  in  allowing the conflicted firm to represent  the  mother

despite its past relationship with the father, and we remand  for

a  determination of the effect of this error on the fathers case.

On  the  issue of the fathers request to be present at the trial,

we  find  no  error in the superior courts denial of the  fathers

request for transport.


          Richard1  and Leslie are the parents of three children,

Cynthia, Violet, and Richard, Jr.  In 1997 the Division of Family

and  Youth Services (DFYS or state) filed a petition alleging the

children to be in need of aid.  In 1998 the children were  deemed

to   be   children  in  need  of  aid  pursuant  to   former   AS

47.10.010(a)(1)(A)2 and committed to the custody of  DFYS  for  a

period of two years.

          In  1999 Richard was charged with sexual assault  of  a

minor  (SAM)  in  the second degree for sexual contact  with  his

daughter,  Cynthia.  That charge was later reduced  to  attempted

SAM  in  the  second degree, to which Richard pled no contest  in

2000.   Richard received a sentence of five years, with two years

suspended.   At  the change of plea, Richard was  represented  by

Brian Kay of the Bethel office of the Public Defender Agency.

          In  May 2000 the state petitioned for a termination  of

Richard and Leslies parental rights.  Richard was represented  by

the Public Defender Agency.  Leslie was represented by the Office

of  Public  Advocacy (OPA).  In July 2000 the  OPA  contract  was

transferred to the Henderson & Kay Law Office, who then filed  an

entry  of  appearance as counsel for Leslie.   Brian  Kay  was  a

member of that firm.

          The  facts  concerning each issue are  straightforward.

With  regard  to the conflict issue, Kay appeared  on  behalf  of

Leslie  at a calendar call in August 2000 and stated that he  had

previously  handled Richards criminal case and that his  partner,

          David Henderson was also involved in this.  Kay acknowledged that

there  was  a  conflict  and  stated that  he  would  check  with

Henderson  and  let the court know the status  of  any  potential

conflict  within two weeks.  At the September calendar  call,  at

which  Henderson appeared on Leslies behalf, no mention was  made

of  any  conflict  in  Henderson & Kays representation.   At  the

pretrial  conference  in  October, the court  indicated  that  it

believed the situation could be remedied by the implementation of

an  ethical  wall,  as  Henderson had no  knowledge  of  Richards

criminal  matter and had not spoken with Kay about it.  According

to  the  court,  the  ethical  wall would  consist  of  a  formal

arrangement  recognizing that Henderson and  Kay  would  have  no

communication concerning the two cases, and that Henderson  would

receive  no  information from any firm file  about  Richard.  The

court  noted that if any party wanted to address the issue before

trial  began a week later, the party should notify the court  and

the matter would be put on the calendar.

          With  regard to his request to participate in the trial

in  person, Richard moved on September 28, 2000 for an  order  of

transport from the correctional facility in Seward to the one  in

Bethel  for  the duration of the termination trial, scheduled  to

begin  on  October 16.  He asked to be transported no later  than

October 4, so he would have time to help his attorney prepare for

trial.   Richards motion was unopposed by DFYS, but was  objected

to  by  the  Department  of  Corrections  (DOC).   After  hearing

argument  on  the  motion at the pretrial conference,  the  trial

court  issued  an  order denying Richards motion  for  transport,

citing  AS  33.30.081(f)3 and AS 33.30.061(a)4 and  stating  that

[t]he court has historically held termination trials with some of

the   parties   telephonically  and  they  have  been   completed


          On  the  first day of trial, Richard renewed his motion

for  transport to Bethel for trial and reiterated his  opposition

to  Henderson & Kays representation of Leslie.  The  court  again

          denied Richards motion for transport.  The court also denied

Richards  motion  regarding the conflict, again finding  that  an

ethical  wall  would  be  sufficient to prevent  any  information

learned  during  Kays representation of Richard from  prejudicing

Richard at trial.

          After   five  days  of  trial,  during  which   Richard

testified  by  telephone,  the court found  that  the  state  had

proven, by clear and convincing evidence, that the children  were

children in need of aid pursuant to five of the six bases alleged

by  the state under AS  The court further found  that

the  conduct  causing the children to be in need of aid  had  not

been   remedied,6   that   Richard  was  incarcerated   and   the

requirements of AS 47.10.080(o) had been met,7 that the state had

made active efforts to provide rehabilitative services to prevent

the  familys breakup,8 and that maintaining parental rights would

result  in  serious emotional and physical harm to the children.9

Superior Court Judge Dale O. Curda then granted DFYSs petition to

terminate the parental rights of Richard and Leslie.

          Richard appeals, claiming that the trial court erred in

permitting Henderson & Kay to represent Leslie over his objection

and  that  the court both abused its discretion and violated  his

due process rights in denying his motion for transport to trial.


          A trial courts decision to disqualify counsel will only

be  reversed if it constitutes an abuse of discretion.10  A trial

court abuses its discretion when we are left with a definite  and

firm conviction, after reviewing the whole record, that the trial

court erred in its ruling.11

          We review decisions regarding the telephonic appearance

of a party for abuse of discretion.12  However, we will review de

novo  whether  the  decision to require an imprisoned  parent  to

testify  telephonically  rather  than  transporting  him   to   a

termination trial violates his right to due process.13   On  that

question,  we  will adopt the rule most persuasive  in  light  of

          precedent, reason, and policy.14


     A.   The Trial Court Abused Its Discretion in Allowing Henderson

          & Kay To Represent Leslie Over Richards Objection.

          A.   Richard argues that his legal representation at the

termination  trial was marred by an actual conflict of  interest.

Under  Alaska  Rules of Professional Conduct  1.915  and  1.10,16

Richard argues that Henderson & Kay should have been disqualified

from  representing  Leslie,  since the  subject  matters  of  the

criminal  case  and  termination  proceeding  were  substantially

related,  Henderson & Kay took a position materially  adverse  to

Richard in the termination proceedings, and the ethical wall  put

in  place by the court did not cure the conflict.  To remedy this

abuse  of discretion, Richard asserts that the termination  order

must be reversed and a new trial be granted.

          Richard  essentially argues that  because  Kay  had  an

actual  conflict  under Rule 1.9 and personally  could  not  have

represented Leslie in the termination, all members of the firm of

Henderson  &  Kay  had  an  imputed  conflict  under  Rule  1.10.

Therefore, Richard reasons, Henderson should have been  precluded

from  representing Leslie in the termination proceedings  on  the

basis of his imputed conflict.

          1.   Kay had an actual conflict.

                A  lawyers duty to former clients is codified  in

Alaska  Rule of Professional Conduct 1.9(a).  Where the  previous

representation  and  current  litigation  cover   the   same   or

substantially  related matters and the current clients  interests

are  materially adverse to those of the former client, the lawyer

shall  not represent the current client unless the former  client


                    a.   The cases are substantially related.

          Richard  argues that the subject matter underlying  his

attempted  SAM  conviction  and the  termination  proceeding  are

substantially  related to one another.  As Richard  reasons,  Kay

          represented Richard at the change of plea and sentencing in the

attempted  SAM  prosecution.  Subsequently, the  alleged  conduct

underlying his conviction was used as a central allegation in the

petition  to  terminate  his parental rights.   Directing  us  to

Daniels v. State18 and Aleut Corp. v. McGarvey,19 Richard concludes

that, under any possible test, the issues in these two cases were

substantially related.

          The  state  argues that the CINA case and the  criminal

case  were  not  substantially related because the  elements  the

state  was required to prove in the criminal and CINA cases  were

different.   The  state characterizes Cynthias  sexual  abuse  as

being  a minor factor in the termination proceeding and disagrees

with  Richards  claim that Daniels and Aleut  Corp.  establish  a

standard  for  determining  when  two  issues  are  substantially


          During  the  pretrial proceedings, however,  the  state

conceded  that  the two matters were related.   At  the  pretrial

conference, the state asserted:

          The  crux  of  the  matter is  what  was  the

          subject matter. . . . [T]he subject matter is

          directly related to this case.  [Richard]  in

          that  case  sexually assaulted his  daughter,

          and   his  rights  as  a  father  are   being

          implicated  here, so I dont  think  the  fact

          that  sentencing took place  in  February  or

          maybe it was March is relevant, really.   And

          I  also  dont think its particularly relevant

          that it was the result of a plea bargain.  Id

          say  the  majority of cases resolve  in  plea

          bargain,  but  that doesnt mean  there  arent

          substantive    negotiations    and    thought

          processes that go into that.

Where a party concedes a fact at trial, that fact cannot later be

contested on appeal.20  Though the parties were not yet at  trial

when  the state made its concession, the matter had to be decided

before  trial  since  it  involved  trial  counsel.   The  states

concession  at the conference, therefore, bars its contention  of

this point on appeal.

          Even  if this argument was not waived at trial, we find

that  the matters are substantially related.  In Aleut Corp.,  we

held that

          an  attorney may not represent a third  party

          against a former client where there exists  a

          substantial possibility that knowledge gained

          by    him   in   the   earlier   professional

          relationship can be used against  the  former

          client,  or where the subject matter  of  his

          present   undertaking   has   a   substantial

          relationship   to   that   of    his    prior


          In  its  petition  to terminate parental  rights,  DFYS

contended  that  Richard  had not remedied  his  conduct  or  the

conditions  in his home since the children were first adjudicated

to  be  in need of aid and that, as a result of his behavior,  he

had  been sentenced to three years in prison for the sexual abuse

of  his daughter.  Further, in its pretrial memorandum, the state

referred to Richards SAM conviction and concluded that the  cycle

has  not  been broken, the issues that brought the children  into

state custody persist.  DFYS also alleged that the treatment  and

counseling offered to Richard had not had any effect.

          In  its decision, the trial court found that based upon

his  no contest plea in 4BE-S99-752 CR for Attempted Sexual Abuse

of  a  Minor  in  the  2nd Degree, clear and convincing  evidence

exists that [Richard], at the least, placed [Cynthia] at the risk

of  sexual  abuse.  The court went on to say that, [n]onetheless,

and notwithstanding the above, both Richard and Leslie placed the

children  at substantial risk of sexual assault.  This  paragraph

indicates  that,  although  there was other  evidence  supporting

          termination under other subsections of AS 47.10.011, Richards

attempted SAM conviction clearly exerted some influence over  the

courts decision to terminate Richards parental rights. While  the

trial  court found reasons other than the sexual abuse supporting

termination, that result could not have been known to  the  court

at the time it decided the conflict of interest issue.

          Brian  Kay  represented Richard in his  sexual  assault

case.  The conviction resulting from Richards no contest plea  in

that  case  played  a  role in the termination  of  his  parental

rights.  As  such,  we  find that Kays prior  representation  was

substantially related to the termination proceeding.

               b.   Leslies interests are materially adverse to Richards.

          Richard  next argues that his interests were materially

adverse  to  Leslies in the termination proceedings.  On  appeal,

the state claims that Richard and Leslies positions were aligned,

as  neither wanted the state to terminate their parental  rights.

Further,  the  state  now maintains that  it  would  not  advance

Leslies  case to show that Richard was an abusive father  because

under  AS  47.10.011 the state could terminate  Leslies  parental

rights based on Richards conduct alone.

          This  argument  stands  in  direct  contrast  to  DFYSs

position  at  trial.   As  discussed  earlier,  at  the  pretrial

conference, the state declared that its clear that Mr. Kay  would

have a conflict to continued representation of [Leslie], when  he

represented Richard at the criminal matter as Richard and  Leslie

obviously  .  .  . have separate interests.  [Leslie]  wants  her

child  back, [Richard] wants his child back, hes in jail,  theyre

separated, they dont, you know, have much contact together. . . .

[T]hats a clear conflict.  Again, where a party concedes  a  fact

at trial, that fact can not be challenged on appeal.22

          Even  if the state had not conceded at trial that there

was  a conflict, we find its current argument to be without merit

and  its  reliance  on AS 47.10.011 to be misplaced.   First,  AS

47.10.011 governs an initial finding that a child is in  need  of

          aid.  Alaska Statute 47.10.088 governs termination and, while

section  .011  is  incorporated into section .088,  more  than  a

finding  that a child is in need of aid is required to  terminate

parental  rights.   Given this statutory  scheme,  the  state  is

simply  inferring  too much from the language  of  section  .011.

While  certain subsections of AS 47.10.011 implicate the  conduct

of  both  parents, once a child has been found to be in  need  of

aid,  the state must then prove that the parent whose rights  the

state  wishes  to  terminate has failed  to  remedy  the  conduct

underlying the petition and that returning the child to the  home

would place the child at a substantial risk of physical or mental

injury.23  Contrary to the states argument, none of these findings

could be made against Leslie based on Richards conduct alone.

          We  conclude  that Richard and Leslies  positions  were

materially  adverse.   At  the time of  termination,  Leslie  had

married  another  man.   Leslie testified  that  she  didnt  want

Richard  to  have contact with the children because  Richard  had

abused  Leslie  and  sexually  assaulted  Cynthia.   Leslie  also

testified  that she didnt want Richard to have any  contact  with

the children because Richard hit his children and masturbated  in

front of Cynthia and touched her inappropriately.  In her closing

argument,  Leslie argued for the termination of  Richards  rights

based on the sexual abuse.

          Richard, on the other hand, testified that he had never

touched  Cynthia  in  a sexual manner.  He  stated  that  he  was

confused  when he entered his plea of no contest to the attempted

SAM  charge.   Though  he was represented  by  counsel  at  those

proceedings, Richard testified that he didnt understand  what  he

was  pleading to.  As Richard maintained that he had not sexually

assaulted  Cynthia, while Leslie argued that the  sexual  assault

was  the  main reason in support of the termination  of  Richards

parental  rights,  Leslies interests were materially  adverse  to


          2.   Kays conflict was imputed to Henderson.

          Richard contends that, according to Alaska Professional

Conduct  Rule  1.10, where one attorney in a law  firm  would  be

disqualified  from  representing a client,  the  entire  firm  is

disqualified.    Thus,  he  concludes  that   because   Kay   was

disqualified, Kays partner, Henderson, should be disqualified  as

well.  In contrast, the state, analyzing the situation under Rule

1.9(b), Rule 1.10, and the accompanying commentaries, argues that

because Henderson himself did not have a conflict, he should  not

be precluded from representing Leslie.

               a.   The states Rule 1.9(b) argument

          a.   Rule 1.9(b) governs representation of a person by an

attorney  whose former firm had previously represented  a  client

with  interests materially adverse to that person and about  whom

the lawyer had acquired confidential information.24  Rule 1.10(a)

bars  a  firms representation of a client when any member of  the

firm  would  be  prohibited from representing that  client  under

Rules  1.7, 1.8(c), 1.9, or 2.2.25  While the commentary to  Rule

1.9(b)  mentions  vicarious disqualification  (another  term  for

imputed disqualification), the text of Rule 1.9(b) indicates that

this  commentary  is  discussing  a  different  form  of  imputed

disqualification than the one at issue here.

                The state argues that the commentary rejects  any

rigid  per  se  approach to disqualification in favor  of  a  two

pronged   functional  analysis  which  looks   at   whether   (i)

confidences  are  preserved and (ii)  adverse  positions  to  the

client are avoided.  Maintaining that Richard and Leslie did  not

have   legally  adverse  positions  and  that  confidences   were

preserved  under Rule 1.9(c), the state concludes that there  was

no   reason   for  Henderson  to  have  been  disqualified   from

representing Leslie.

          This two-pronged functional analysis, however, does not

impact  our analysis under Rule 1.10(a).  Once a lawyer is deemed

to  have  a  conflict under Rule 1.9, that lawyer is disqualified

from  representing another client with an adverse position  in  a

          substantially related matter unless the previous client consents.

In  situations where it is not immediately clear that an attorney

has  a  conflict  with a client of a prior firm,  the  functional

analysis  should be undertaken to determine if the  attorney  has

acquired  confidential information relevant  to  a  substantially

related  matter on which the attorney would be asked  to  take  a

position  adverse  to  that former client.  Where  an  individual

attorney is conflicted out under either of these scenarios,  that

conflict  is  imputed  to the attorneys entire  firm  under  Rule

1.10(a).   Thus the functional analysis described in the  comment

to Rule 1.9 applies only to determine whether there is a conflict

in  the  first  place and not to ascertain whether  the  conflict

should  be  imputed to other members of the conflicted  attorneys

firm.   As  the  comment to Rule 1.10 explains,  each  lawyer  is

vicariously  bound by the obligation of loyalty  [owed]  by  each

lawyer with whom the lawyer is associated.26

               b.   This conflict was imputed under Rule 1.10.

          Richard   argues  that  the  purpose  behind  vicarious

disqualification  is  to protect the former  clients  confidences

where  a member of a law firm had acquired knowledge material  to

current  litigation.  As Kay had an actual conflict of  interest,

Richard contends, Hendersons statement to the court that his firm

did  not  have a conflict of interest because he had no knowledge

of  Richards criminal matter was simply a wrong legal analysis of

[Alaska  Rules of Professional Conduct] 1.9 and 1.10.  The  state

responds  by  asserting that since Kay no longer  had  access  to

Richards  criminal file and there was no evidence that  Henderson

and  Kay had shared any confidences regarding Richard, there  was

no  reason to impute to Henderson any conflict Kay might be found

to have.

             The commentary to Rule 1.10 states that the rule  of

imputed  disqualification found in Rule 1.10(a) gives  effect  to

the principle of loyalty to the client.  As the comment explains:

          Such  situations can be considered  from  the
          premise that a firm of lawyers is essentially
          one   lawyer  for  purposes  of   the   rules
          governing loyalty to the client, or from  the
          premise that each lawyer is vicariously bound
          by  the obligation of loyalty [owed] by  each
          lawyer with whom the lawyer is associated.[27]
Thus,  as a plain reading of Rule 1.10(a) indicates, because  Kay

had  a  conflict  in representing Leslie, that conflict  must  be

imputed  to  Henderson,  thereby  barring  either  of  them  from

representing Leslie at the CINA hearing.

          3.   The trial court erred in refusing to disqualify Henderson &

               Kay from representing Leslie during the termination proceeding.

               a.   Richards motion to disqualify was not untimely.

          The  state  argues that Richards motion  to  disqualify

Henderson from representing Leslie was untimely and that Richards

delay resulted in a waiver of any conflict.  The state alleges  a

two-month  delay  from the time Richard was  made  aware  of  the

potential conflict to the time he raised the issue in court.   At

a  minimum, the state contends, Richards delay contributed to the

factors that weighed against disqualification of Henderson & Kay.

          Richard  argues that Kays notice at the  calendar  call

that  he had a conflict did not constitute a waiver of his  right

to  object to the firms conflict.  Richard further maintains that

there  was  no  opportunity  to discuss  the  conflict  with  his

attorney prior to the pretrial conference and that any delay  was

not designed to gain tactical advantage.

          The  state cites Jackson v. J.C. Penney Co.28  for  the

proposition that failure to make a reasonably prompt  motion  for

disqualification  may  result in the conflict  being  waived,  as

considerations  of the right to choice of counsel,  expense,  and

delay support a requirement that motions to disqualify be brought

promptly.   Courts  in other jurisdictions have  also  held  that

motions  to  disqualify counsel should be  made  with  reasonable

promptness after the potential conflict is known.29  Other courts,

however,  have  held that, absent a showing of  improper  motive,

delay should not be considered in deciding motions to disqualify.30

          There  is no evidence in the record that Richard waited

          until the pretrial conference to object to Henderson & Kays

representation  of  Leslie  to gain a tactical  advantage  or  to

harass  either Leslie or the state.  Rather, the record indicates

that  the  pretrial  conference was the first  time  Richard  had

personally  heard of the potential conflict.  The delay  was  two

months,  much shorter than the periods allowed in other  cases.31

Furthermore,  at the calendar call, Kay indicated that  he  would

advise the court of the status of any potential conflict his firm

had  within  a  couple of weeks.  It appears as  though  no  such

advice was ever received by the court or counsel.  Given the lack

of  evidence indicating an improper motive and the importance  of

having  counsel  free from conflicts of interest,  the  two-month

delay in bringing the motion to disqualify did not result in  the

waiver of Richards right to challenge the conflict.

               b.   The court did not properly institute screening measures.

          Richard   argues  that  no  screening   procedure   was

implemented  to  allow  Henderson  to  represent  Leslie  at  the

termination proceeding, asserting that no ethical wall  saved the

firm  from  an  actual conflict of interest.  The state,  though,

argues  that an ethical wall did prevent any potential  prejudice

to   Richard.   The  state  also  argues  that  proper  screening

mechanisms  mitigate  the  need to disqualify,  especially  where

there has been a delay in moving for disqualification.

          We  have never before addressed the question of whether

screening  measures can allow a firm to represent a  client  that

the  firm  would otherwise be prohibited from representing  under

Rule 1.10.  While the Alaska Comment to Professional Conduct Rule

1.11  states  that courts have recognized screening methods  that

prevent  intrafirm  exchange  of confidential  information,32  we

decline to import this comment into Rule 1.10.

          Rule  1.11 relates to successive government and private

employment.  While the text of Rule 1.11(a)33 might be interpreted

to  include  the public defender, as public defenders are  public

employees, the comments to Rules 1.10 and 1.11 indicate that  the

          government employment envisioned by the drafters did not include

public  defenders.  The reason for this distinction is  explained

in  the  commentary.  Rule 1.11 prevents a lawyer from exploiting

public  office  for  the  advantage of a private  client.34   The

comments  to  both  Rule 1.10 and Rule 1.11  discuss  Rule  1.11s

application  to  a  lawyer  who had  previously  represented  the

government.35  Unlike most public lawyers, public defenders do not

represent  the  government  or  a public  agency.   Rather,  they

represent  individual clients.  Instead of working on  behalf  of

the state, public defenders work on behalf of private individuals

whose  interests are often directly contrary to the interests  of

the  state  or  society at large, despite the  fact  that  public

defenders receive their compensation from the state.36

          Given  our conclusion that Rule 1.11 does not apply  to

the  case of a public defender who has joined a private firm,  we

must determine whether to import the screening provisions of Rule

1.11  into  Rule  1.10.   The comment to Rule  1.10  specifically

addresses the varying consequences of disqualification.   As  the

comment  states,   [d]ifferent provisions are  .  .  .  made  for

movement  of  a lawyer from one private firm to another  and  for

movement of a lawyer between a private firm and the government. 37

The   drafters  could  have  written  Rule  1.10  to  allow   the

implementation of screening measures where a conflict of interest

exists.   Instead, they chose to draft a separate rule  endorsing

screening  procedures  only for attorneys  transitioning  between

government  and  private practice.  Accordingly,  we  decline  to

import  the  provisions of Rule 1.11 into Rule 1.10 and  conclude

that the screening measures found in Rule 1.11 do not apply to  a

Rule 1.10 conflict.38

          c.   Richard did not fail to request reconsideration.

          Finally,  the  state  argues  that  Richard  failed  to

request   reconsideration  and  therefore  waived   any   further

consideration of this matter.  At the pretrial conference,  Judge

Curda, after stating that Henderson would not be disqualified and

          that an ethical wall would prevent the sharing of confidences,

told the parties that if any of them felt the issue needed to  be

readdressed later that week, that party could notify his  office.

Although   no  papers  were  filed  with  the  court   requesting

reconsideration, Richard asked for reconsideration prior  to  the

start  of  trial.   The  court realized that  Richards  statement

challenging the propriety of Hendersons representation of  Leslie

was  a  motion for reconsideration, stating that it was going  to

deny  reconsideration  . . .; going to deny  the  motion.   While

Richard did not file a written motion requesting reconsideration,

the   court  recognized  his  oral  request  as  a  request   for

reconsideration;  Richard therefore  did  not  fail  to  ask  for


          4.   On remand, the trial court must determine if Richard was

               adversely affected by Hendersons representation of Leslie.

          Richard  argues  that the superior  courts  refusal  to

dismiss  Henderson from Leslies representation requires  reversal

of  the courts order terminating his parental rights.  The state,

however, maintains that Richard did not suffer any harm,  as  the

state only needed to prove that the children were in need of  aid

under   one   jurisdictional  basis  and  evidence  of   Richards

conviction  for  sexual abuse of a minor would have  come  in  as

evidence in any event because it was a matter of record.  We have

not  yet  addressed the proper remedy for a failure to disqualify

counsel  because  of a conflict of interest in a  termination  of

parental rights proceeding.

          We begin with the propositions that the right to parent

is a fundamental right,39 and that appointed counsel is guaranteed

for  indigent parents when their parental rights are at  stake.40

Accordingly, a parent who faces termination of parental rights is

entitled  to an attorney who is free of any conflict.   But  this

case  does  not present that problem: Richard was throughout  the

termination  case  represented by an  independent,  conflict-free


          Richards argument relies upon the quasi per se rule  of

reversal  adopted  in  LaPierre v. State  and  other  cases  from

criminal law in which defendants allege a conflict of interest.41

But   those  cases  involve  criminal  defendants  who  had  been

represented  by  attorneys with conflicted  interests.   In  that

situation,  the  conflict  obviously  threatens  to  deprive  the

defendant of the constitutional right to effective assistance  of

counsel;  the rule of almost automatic reversal simply recognizes

that  this  constitutional  right has been  traditionally  deemed

nearly  absolute.   LaPierres  harmless  error  test,  then,   is

uniquely tailored to the fundamental nature of the constitutional

right  it  protects: the defendants right to effective assistance

of counsel in the proceeding at issue.

          In the case at issue here, by contrast, Richard was not

represented  by  the  conflicted  attorney;  rather,  his  former

attorney  in  an  earlier matter improperly  represented  another

party   Richards codefendant, Leslie  in the present action.   In

this  situation, there is no reason to believe that the  disputed

conflict  of interest deprived Richard of his right to  effective

assistance of counsel in the present case.  Although Henderson  &

Kays  conflict undeniably exposed Richard to a risk of  prejudice

by  potentially  enabling  the  firm  to  use  previously  gained

confidences unfairly against Richard, this form of prejudice  has

little   bearing   on   the  interests  protected   by   Richards

constitutional   right  to  counsel:  his  right   to   effective

representation  in  the  present  case  by  his   own   attorney.

Throughout  these termination proceedings, Richard  received  the

services of a nonconflicted attorney whose loyalty and competence

remain unchallenged.

          To  be sure, improprieties directed against a defendant

by  a  codefendants attorney can cause serious prejudice and,  in

that  sense,  can  hamper  the defendants  attorneys  ability  to

present  a  successful defense.  But error of  that  kind  is  no

different than any other error emanating from sources beyond  the

          defense counsels control.  Because such errors do not derive from

or reflect any shortcoming in the quality of the defendants legal

representation in the case at issue, they cannot fairly  be  said

to  infringe the defendants constitutional guarantee of effective

assistance  of  counsel.   Richard offers  no  authority  to  the

contrary.   The  only  case  he cites  involving  a  codefendants

improper  representation by an attorney who formerly  represented

the  defendant,  State v. Sanders,42 is readily  distinguishable:

because  the conflicted attorney in Sanders initially represented

the  defendant  in  the same case, the conflict  at  issue  there

directly implicated the defendants right to counsel in that case.

          We  therefore  see  no  reason to assume  that  Richard

suffered   the   same   kind  of  fundamental,   constitutionally

subversive harm that LaPierre and Cuyler presume will occur  when

a defendants own counsel actively serves interests adverse to the


          Moreover,  Richard suggests no other sound  reasons  to

apply  a  harmless error test like LaPierres, which builds  in  a

presumption of prejudice.  Although he cursorily asserts  that  a

presumption  of  prejudice is necessary because  the  prejudicial

effects  of conflicted representation may be difficult to  prove,

Richard  fails  to  explain why this is so.  The  assertion  that

prejudice is difficult to prove may have considerable merit  when

a  defendant is represented by a conflicted attorney, and perhaps

even  when a codefendant is improperly represented by an attorney

who  formerly represented the defendant in the same case.43   But

the  inherent difficulty of proving prejudice does not seem self-

evident when the conflict arises from former representation in  a

different proceeding.  Assisted by current counsel, the defendant

would  presumably be able to recall or discover  most  previously

revealed  confidences  and would be capable  of  identifying  and

guarding against their possible exploitation by defendants former

counsel.   Hence, it would not seem unreasonable to require  some

showing of actual prejudice as a prerequisite to reversal.

          Nor  would any deterrent purpose be served in this case

by  replacing the conventional harmless error test, which demands

a  showing  of  actual  prejudice,  with  a  rule  that  presumes

prejudice.  To the contrary, in the present case a reversal based

on  presumed prejudice would have perverse consequences: it would

have no direct impact on the offending attorneys or their client;

yet  it would severely penalize the state and, consequently,  the

three  children whose interests the state represents  even though

the state actively sought to disqualify Kay at the superior court


          This  is  not  to say that a conflict like  this  could

never  have  constitutional ramifications.  But  if  the  ethical

breach  in this case raises constitutional concerns, they  center

on notions of fairness  procedural due process.44  We can imagine

circumstances  in  which representation of a codefendant  by  the

defendants  former  counsel  might  generate  a  risk  of  unfair

prejudice  so  grave as to violate the defendants  right  to  due

process.   But  beyond showing the bare existence of  a  conflict

here,  Richard  points  out no specific circumstances  suggesting

fundamental  unfairness.  Nor are any such circumstances  readily

apparent.   Given the numerous allegations underlying the  states

termination  petition and the strength of its evidence,  Richards

prior  sexual  abuse  prosecution   the  case  in  which  he  was

represented  by  Kay   was not essential to the  superior  courts

decision.   Richards  conviction in that case  was  a  matter  of

public  record.   Given  that any attorney  representing  Leslie,

conflicted or not, would be free to exploit this information,  it

seems  difficult  to fathom what confidences Richard  might  have

revealed in the prior proceeding that could have caused  him  any

significant incremental damage.

          And  finally,  it seems relevant to consider  that  Kay

personally  played  only a minor role in  the  termination  case,

representing Leslie in the cases earliest stages and then handing

it  off  to Henderson.  Once Kay stepped out of the picture,  his

          firm made diligent efforts to screen him from Henderson.

Although  as an ethical matter these screening measures  did  not

meet  Rule  1.9s stringent requirements or authorize Henderson  &

Kay  to  represent  Leslie,  they did,  as  a  practical  matter,

eliminate much of the risk of actual prejudice to Richard.   They

thus  cut  strongly against a finding of fundamental  unfairness.

Absent  a more particularized showing of actual prejudice,  then,

we  see  no basis for concluding that the circumstances  of  this

case implicate Richards constitutional right to due process.   It

follows that the error in allowing conflicted representation is a

non-constitutional error.

          For  these  reasons, we conclude that our  conventional

test  for  non-constitutional error must be used to determine  if

Henderson  & Kays ethical breach amounted to reversible  error.45

On  remand,  the  superior court must determine  if  there  is  a

realistic  likelihood that Henderson & Kays conflicting  interest

had  any  appreciable effect on the outcome  of  the  termination


     B.   The Superior Court Did Not Abuse Its Discretion in Denying
          Richards Request To Attend the Parental Rights Termination Trial.
          A.   Richard next argues that the superior court abused its

discretion  in  denying  his motion for transport  to  Bethel  to

prepare for and attend the termination trial.  The state contends

that  the court properly considered the facts, law, and its  past

experiences   with   telephonic  participation   in   termination

proceedings before denying the motion.

          As  the  superior  court noted  in  its  order  denying

transport,   AS   33.30.081(f)  governs  the  transportation   of

prisoners  to  civil  trials to which they  are  a  party.   This

statute provides:

          A court may order a prisoner who is a party .
          .  .  to a civil action . . . to appear at  a
          place   other   than  within  a  correctional
          facility only if the court determines,  after
          providing  a reasonable opportunity  for  the
          commissioner  to comment, that the  prisoners
          personal appearance is essential to the  just
          disposition  of the action.   In  making  its
          determination,   the  court  shall   consider
          available   alternatives  to  the   prisoners
          personal appearance including deposition  and
          telephone testimony.[46]
Relying   on  this  statute,  the  court  stated  that   it   has

historically  held termination trials with some  of  the  parties

telephonically   and  they  have  been  completed   successfully.

Following  the  initial denial of Richards motion for  transport,

his  attorney asked the court to reconsider its decision, arguing


          without [Richard] here being able to confront
          those  persons who are witnesses against  him
          in  this  proceeding, a proceeding  which  is
          tantamount to a criminal proceeding  in  that
          its  going  to discuss issues such as  sexual
          abuse  alleged  to  have occurred  or  [been]
          perpetrated by [Richard], as well as this  is
          a  termination of his parental rights for his
          children,  and  so it is essential  that  hes
          here, and despite financial burdens that  the
          state might incur, and I would also add  that
          telephone  call  certainly is  a  substantial
          financial   burden   in  itself   that   were
          incurring,  but  I would ask that  the  court
          reconsider  and have him transported  to  the
          court   order that the commissioner transport
          him to the courthouse as soon as possible.
The  superior  court  again declined to exercise  its  discretion

under  subsection  .081(f), relying on  the  facts  that  it  has

historically held termination hearings telephonically and that in

E.J.S. v. Department of Health & Social Services,47 we held  that

the  due process rights of a father to confront and cross-examine

witnesses  in a termination proceeding were not violated  by  his

telephonic  participation  because his  attorney  was  physically

present in the courtroom.48

          Richard  maintains that [t]he trial  court  abused  its

discretion  when  it failed to weigh [Richards]  need  to  timely

consult  with  counsel  and to personally  testify,  against  the

states  expense  in  transporting him to Bethel  for  the  trial.

However, the state counters that as directed by the statute,  the

court  considered whether it was necessary to the outcome of  the

          trial that Richard be present and accurately gauged that

telephonic testimony offered a viable alternative to transporting

Richard  to Bethel for trial.  According to the state, on  appeal

Richard has failed to demonstrate specifically how his failure to

be  present  adversely affected the outcome of  the  trial.   The

state  concludes that [a]lthough [Richard] states the trial court

was  unable  to assess his credibility, he does not contend  that

the  court  found  him  less  than  credible  or  state  how  his

credibility materially affected the outcome of the trial.

          In  considering circumstances under which trial  courts

should  grant prisoners requests to be transported  to  court  to

testify in person, appellate courts in several states have agreed

upon a set of factors a trial court should balance in making such

a  determination.  As summarized by the Supreme  Court  of  North


          In  making its determination the trial  court

          may   take   into  account  the   costs   and

          inconvenience of transporting a prisoner from

          his  place of incarceration to the courtroom,

          any  potential danger or security risk  which

          the  presence  of a particular  inmate  would

          pose to the court, the substantiality of  the

          matter  at  issue,  the  need  for  an  early

          determination of the matter, the  possibility

          of  delaying  trial  until  the  prisoner  is

          released, the probability of success  on  the

          merits,  the  integrity of  the  correctional

          system,  and the interests of the  inmate  in

          presenting  his  testimony in  person  rather

          than by deposition.[49]

          We  agree  that these factors are among those  a  trial

court   should  consider  in  deciding  whether   to   grant   an

incarcerated  parents request to be transported to a  termination

trial.   Alaska Statute 33.30.081(f) vests significant discretion

          in the trial court to make this determination.  As with any

discretionary  decision, trial courts must  carefully  weigh  all

relevant  factors  in  assessing  whether  the  presence  of   an

incarcerated parent is essential to the just disposition  of  the


          In this case, we recognize that a fundamental right was

at  stake, that multiple issues were involved and the proceedings

were  lengthy, and that Richard preferred to be present  for  the

trial  and  to  give his testimony in-person.  We also  recognize

that  where  the  credibility of a party or witness  will  likely

affect  the  outcome of the case, it will be  important  for  the

court  to  see  and  hear  the person testify.   As  we  recently


          the   potential  for  empathy   and   nuanced
          understanding  is much greater in  person-to-
          person  communications than  in  any  of  the
          various     forms    of    telecommunicating.
          Likewise, when a party is denied an in-person
          hearing  before a trier of fact, there  is  a
          risk  that  the party will be  less  able  to
          convey  the  message that his  story  is  the
          Under  the circumstances of this case, however,  we  do

not  believe the court abused its discretion in denying  Richards

request to be transported to Bethel.  While expressing his desire

to  be present at trial and intention to testify, Richard did not

demonstrate to the court what specific information he intended to

convey   through  his  testimony  that  would   depend   on   his

credibility, nor did he present the court with any basis on which

to  believe  that the outcome of the case would depend  upon  his

presence.  Without  a  specific  offer  of  credibility-dependent

evidence or a demonstration in his motion of any material  issues

he  intended to dispute, the court was well within its  authority

to deny Richards motion for transport.

          This  is especially true given the states demonstration

of  the  significant cost of transporting Richard to trial.   The

DOC argued that Bells transport would require an officer to bring

          [Richard] from Spring Creek by road to Anchorage, fly him to

Bethel,  house  him  at  the crowded Bethel correctional  center,

YKCC,  for  a  number of days and then bring  him  back  down  to

Seward,  all  at  great expense to the state.  Additionally,  the

state  maintained  that transporting [Richard] would  potentially

lead  to  illegal  overcrowding and would create  ripple  effects

throughout  the  system  and  require  significant  planning  and

coordination.   Moreover, Richard did not  file  his  motion  for

transport to the Bethel correctional facility until September 28,

at  which point he asked to be relocated no later than October  4

so  as  to  prepare for the October 16 trial.  This provided  the

state  with less than a week to arrange for the personnel, travel

accommodations,  and jail space necessary to facilitate  Richards

presence  at the termination trial.  Given the short  time  frame

Richards request presented the DOC with, we cannot say the  court

abused its discretion in denying Richards request.

     C.   The Court Did Not Violate Richards Right to Procedural Due
          Process by Denying His Request To Be Transported to His
          Termination Trial.
          1.   Our case law has not established a procedural due process
               right of incarcerated parents to be transported to termination of
               parental rights trials.
          Finally, Richard argues that under Whitesides v. State,

Department of Public Safety, Division of Motor Vehicles,52 we must

recognize  a  due  process  right of an  incarcerated  parent  to

testify in person at a termination of parental rights trial.   In

Whitesides,  we  determined  that where  the  credibility  of  an

individual in a drivers license revocation hearing was at  stake,

due  process requires that he be permitted to testify  in  person

before  a  hearing officer.53  As in Richards case,  the  statute

governing   Whitesidess  right  to  testify  in   person   vested

discretion in the hearing officer to determine whether  in-person

testimony was warranted.  Specifically, AS 28.15.166(e) provides:

          The  hearing under this section must be  held
          by telephone unless the hearing officer finds
          that a telephonic hearing would substantially
          prejudice  the rights of the person  involved
          in  the  hearing or that an in-person hearing
          is  necessary  to  decide the  issues  to  be
          presented in the hearing.[54]
Whitesides argued that since his credibility was at issue in  the

hearing,  the  due  process  clause of  the  Alaska  Constitution

affords him the right to present his testimony in person  to  the

trier of fact.55

          In  assessing  Whitesidess claims,  we  looked  to  the

United  States Supreme Courts decision in Mathews v.  Eldridge,56

which  set  out  the  framework we  have  traditionally  used  in

evaluating   whether  administrative  proceedings  comport   with

procedural  due  process requirements.  Under  Mathews,  we  will


          First,  the  private interest  that  will  be
          affected by the official action; second,  the
          risk  of  an  erroneous deprivation  of  such
          interest through the procedures used, and the
          probable  value,  if any,  of  additional  or
          substitute    procedural   safeguards;    and
          finally,  the Governments interest, including
          the  function  involved and  the  fiscal  and
          administrative burdens that the additional or
          substitute   procedural   requirement   would
          Analyzing  Whitesidess  claims  under  this  test,   we

determined  that  a  drivers  license  has  been  considered   an

important  property interest, and that drivers license revocation

proceedings are quasi-criminal in nature.58  On the second factor,

we  reasoned  that in certain situations reliance  on  telephonic

testimony  may  create  an  unacceptable  risk  of  an  erroneous

deprivation of the right to drive.59  We emphasized that  [w]here

the witnesss truthfulness is disputed, demeanor can be important,60

and   observed  that  the  potential  for  empathy  and   nuanced

understanding  is much greater in person-to-person communications

than in any of the various forms of telecommunicating.61  We also

noted that a party denied an in-person hearing before a trier  of

fact may be less able to convey the message that his story is the

truth.62   Finally,  we evaluated the governments  interest,  and

considered whether the requirement of an in-person hearing  would

          impose additional fiscal or administrative burdens on the

government.   We  concluded  that  public  safety  would  not  be

compromised  by  the  provision of in-person hearings  and  that,

except where hearing officers would have to travel to conduct in-

person  hearings,  the increased cost to the  taxpayer  would  be

negligible.63  Suggesting some less costly alternatives to travel,

we  concluded  that  we  do  not think that  providing  in-person

hearings  to  parties  who  want  them,  in  cases  where   their

credibility  is at issue, must be significantly more costly  than

the present system.64

          Upon  a balancing of these three factors, we determined
that  a  due  process violation had occurred as a result  of  the
hearing  officers denial of Whitesidess request for an  in-person
hearing.65   In  order  to  avoid a  constitutional  problem,  we
construed  AS  28.15.166(e)  as  requir[ing]  in-person  [license
revocation]  hearings where a party requests such a  hearing  and
material  questions  depend  on the  credibility  of  the  partys
          Richard  has  argued  that our analysis  in  Whitesides

requires  us to read into AS 33.30.081(f) a due process right  of

incarcerated parents to be transported to proceedings  where  the

state  seeks  to terminate their parental rights.  DFYS  takes  a

contrary   position,   arguing  that  the   differences   between

Whitesidess  circumstances and those faced by Richard  require  a

distinct analysis under Mathews v. Eldridge.67

          We agree with the state that our decision in Whitesides

does  not  control  this  issue.  In  Whitesides,  we  considered

whether a hearing officer must permit an individual to appear  in

person  for a hearing.  In Richards case, we are asked to  decide

whether  the  state  should be required to transport  a  prisoner

across  the  state for a trial.  While the interest in preventing

the termination of ones parental rights is unquestionably greater

than  the  interest in maintaining a drivers license, the  burden

that  would be placed on the state in requiring the transport  of

prisoners  is  likewise  greater than the  negligible  burden  of

allowing  litigants  to appear in person.  In  short,  Whitesides

does not control the outcome of this case.

          2.   Procedural due process does not require that every
               incarcerated parent be transported to a termination trial.
          1.   We recently addressed the circumstances under which the

state  will be required to transport a  prisoner to a civil trial

to  which  he  is  a  party, in Midgett v. Cook  Inlet  Pre-Trial

Facility.68  In Midgett, an inmate in a federal prison  in  South

Carolina requested transport to Anchorage to appear in a  lawsuit

he   had   brought   against  the  state   alleging   negligence,

constitutional  violations,  breach  of  contract   and   medical

malpractice.69  We noted that in most cases, a prisoner has a due

process right to reasonable access to the courts which cannot  be

limited   unless   the   states   interests   in   security   and

rehabilitation   of  prisoners  cannot  be  protected   by   less

restrictive means.70  In upholding the trial courts decision  not

to  grant  Midgetts  request,  we  distinguished  his  case  from

Whitesides in three respects:

          First, unlike Whitesides, in which the  state
          affirmatively  prosecuted  an  administrative
          action against a private person, Midgett  has
          elected to sue here, placing the state  in  a
          purely defensive posture.  Second, the  state
          sought  to  deprive Whitesides of a  valuable
          license;  Midgett, on the other hand,  simply
          asserts  his economic interest in  recovering
          money  damages.   Third, Whitesides  required
          the state to allow in-person testimony in the
          absence  of  any case-specific  circumstances
          compelling telephonic proceedings.  Here,  by
          contrast, the state has shown compelling  and
          case-specific   reasons  for   a   telephonic
          hearing: the extraordinary costs and security
          risk  associated with transporting an out-of-
          state prisoner to Alaska for trial.[71]
We   ultimately  concluded  that,  because  allowing  Midgett  to

participate telephonically would not substantially prejudice  his

claim  nor  was  his  physical  presence  essential  for  a  just

disposition,  the  trial court had not erred in denying  Midgetts

request to be transported to Alaska.72

          As  Richard argues, the circumstances of his  case  are

likewise  distinguishable from those of Midgetts.  Here, parental

          rights, which have in the past been accorded substantive due

process  protections, are at stake.  Additionally, the  state  is

not  defending  against  a  suit for  monetary  damages,  but  is

attempting  to use its power to deprive Richard of a  fundamental

right.  Given the vastly different circumstances under which this

case  arose, Richard asks us to read AS 33.30.081(f) as requiring

that  incarcerated parents be brought to the courthouse  whenever

their credibility will be at issue in a termination proceeding.

          The closest we have come to addressing this question in

the  past  was in E.J.S. v. State, Department of Health &  Social

Services.73  In E.J.S., an incarcerated father74 claimed that  he

had  been denied his right to effective assistance of counsel and

his  due  process  right to confront and cross-examine  witnesses

against  him due to his inability to hear the proceedings.75   We

rejected  his claims, reasoning that his attorney was present  in

the  courtroom and effectively cross-examined the witnesses, that

the transcript indicated that he could hear well enough, and that

telephonic  participation is sanctioned by Alaska Rule  of  Civil

Procedure 99.76  However, E.J.S. is distinguishable from the case

at  bar  in  that its discussion was limited to the  due  process

rights of confrontation and cross-examination.77 Additionally, the

termination in E.J.S. was based on the fathers abandonment of his

daughter, a determination largely based on objective evidence.78

          Whether  Richard can be said to have been  deprived  of

due  process  in this situation depends on the balancing  of  the

three factors identified in Mathews v. Eldridge,79  the individual

interest  at stake, the value the desired procedure adds  to  the

proceedings and the competing governmental interest.80

               a.   The  interest  of  parents in  raising  their


          As both Richard and DFYS agree, [t]he right to care and

custody  of  ones own child is a fundamental right recognized  by

both the federal and state constitutions.81  We have characterized

this right as one of the most basic of all civil liberties,82 and

          recognize that it clearly falls within the protections of the due

process clause and should be accorded significant weight.

               b.   The risk of wrongful deprivation of the right
                    to  raise  ones children due to  reliance  on
                    telephonic  testimony and the probable  value
                    added by in-person testimony
          The  value of live testimony was attested to at  length

in our opinion in Whitesides.83  As we recognized, the trial court

is  in  a unique position to judge the credibility of a party  or

witness  who  testifies  before it.84  In situations  where  ones

credibility  is at issue, denying an in-person hearing  denies  a

party  an  opportunity to present evidence in the most  effective

way possible.85

          In  this  case,  Richard  argues  that  his  telephonic

testimony  was  inadequate.  He contends that he  had  difficulty

communicating basic information to the court, and adds  that  the

forum  did  not  provide  [him] with an adequate  opportunity  to

convey  his credibility to the court.  He claims that he  offered

testimony  designed  to demonstrate that he has  taken  steps  to

eliminate  sexual abuse, alcoholism, and domestic  violence  from

his  life, and that he was committed to maintaining those changes

in  the  future.   He  argues,  [t]he  most  compelling  evidence

[Richard]  had to offer was his testimony. [Richards] credibility

was  essential to his defense against the petition  to  terminate

his  parental rights. . . . The trial courts denial of his motion

to  transport to Bethel deprived [Richard] of the most  effective

weapon  in  his  arsenal, the ability of the  trier  of  fact  to

personally witness his demeanor as he testified.

          In   response,   the  state  contends   that   Richards

credibility was not an issue on any material matter.  First,  the

state maintains that Judge Curda had ample opportunity to observe

Richards  credibility and demeanor during the course of his  CINA

case,  as  well as on his domestic violence assault and attempted

sexual  assault of a minor charges.  Next, the state argues  that

Richard  never  specifically requested to be transported  because

          his credibility was at issue.  Finally, the state asserts that

while  Richard  denied the conduct underlying his conviction  for

sexual  abuse  of a minor, whether or not [Richard] attempted  to

sexually  abuse [Cynthia] was not a material issue in  the  case.

The  state concludes that because [Richard] did not contest  that

he  had  been charged with sexual abuse of a minor, that  he  had

pled  no  contest  to one count of attempted sexual  abuse  of  a

minor, and that he was incarcerated at the time of trial on  that

conviction[,] . . . no issue of credibility was presented.

          The  states  argument  is convincing.   Throughout  his

testimony, Richard did not dispute, but instead corroborated  his

history  of  domestic  violence,  substance  abuse,  and  related

criminal  charges  and  convictions  (except  the  sexual   abuse

charge).   While other facts formed additional bases on which  to

terminate   his   parental  rights,  Richards   testimony   alone

established  sufficient facts to support the charges of  domestic

violence,  other  criminal charges, and substance  abuse  against

him.   Whether the court found Richards testimony on these issues

credible  was irrelevant, because he largely admitted the  states

case and the state presented other evidence to support that case.

Further,  Richard  would ordinarily have been  precluded  by  his

conviction  from  denying the conduct on which  it  was  based.86

Because  Richard  was  challenging  his  conviction  through   an

application  for  post-conviction relief when  the  issue  arose,

however, it is not necessary to rely on this point.  Accordingly,

we  find  that  Richards credibility was  not  at  issue  on  any

material  matter and therefore that any value added by  in-person

testimony in this case would have been negligible.

               c.   The  interests  of  the  government  and  the
                    financial  and  administrative  burdens   the
                    government  would  incur  as  a   result   of
                    requiring  transport  of  prisoners  for  the
                    purpose of in-person testimony
          The  primary  government interests  involved  here  are

those  of avoiding the cost, administrative burden, and potential

dangers  of  transporting prisoners. In support of  its  position

          that the cost of transporting Richard to the termination hearing

would  be  prohibitive, the state argued that Richards  transport

would require an officer to bring [Richard] from Spring Creek  by

road  to  Anchorage, fly him to Bethel, house him at the  crowded

Bethel  correctional center, YKCC, for a number of days and  then

bring him back down to Seward, all at great expense to the state.

Additionally,  the  state  maintained that  transporting  Richard

would  potentially lead to illegal overcrowding and would  create

ripple  effects  throughout the system  and  require  significant

planning and coordination.

          Adding  to  the  states  burden in  this  situation  is

Richards  untimely request for transport.  As discussed  earlier,

with  trial  scheduled to being on October 16, Richard  moved  on

September 28 to be relocated to the Bethel correctional  facility

no  later than October 4.  This provided the state with less than

a  week to arrange for the personnel, travel accommodations,  and

jail  space  necessary  to facilitate Richards  presence  at  the

termination  trial.  The high administrative and financial  costs

of  transporting Richard to trial, coupled with the  untimeliness

of  his  motion, weigh heavily against a finding that due process

required his transport.

               d.   The  circumstances of Richards  case  do  not

                    require his in-person participation.

          Richard  maintains  that given the  importance  of  the

interest   at  stake,  the  demonstrated  benefits  of  in-person

testimony,  and the merely generalized assertions of expense  and

inconvenience articulated by the state, due process requires that

we  read  AS 33.30.081(f) as guaranteeing him the opportunity  to

testify in person.  He concludes that when a fundamental right is

at stake, due process requires that the costs to the state take a

lesser  priority,  to insure that an individual  is  not  wrongly

deprived  of  a  fundamental right.  Richard  oversimplifies  our


          In  every case we must weigh not only the interests  at

stake  but  the  benefits  and burdens  that  would  result  from

implementing  the  proposed  rule.  Richard  looks  only  to  his

interest   which assuredly is fundamental  and the states   which

is  important but not fundamental  and concludes that he must  by

definition prevail.  But he has failed to consider the extent  to

which his proposed rule would advance his interest and the extent

to which it would burden the states interest.  When this analysis

is considered, the balance tips decidedly in the states favor.

          We  turn first to the extent to which Richards interest

in  his parental rights would be furthered by a rule that he must

be   allowed   to  participate  in  person  in  the   termination

proceeding.   In  Whitesides we held that where a  tribunal  must

make  a  judgment regarding credibility, the individual  must  be

given  the  opportunity to appear in person  before  the  hearing

officer.   Here,  however, as we have seen, Richards  credibility

was   not   central  to  the  courts  decisionmaking   process.87

Conversely,  the  burden  on  the  states  interests  of  a  rule

requiring  prisoner  transports in  all  termination  proceedings

would  be  substantial.  Financial costs to the state  of  moving

prisoners  would be high, and the administrative  burden  on  the

Department of Corrections would be increased by the frequent need

to  transfer prisoners out to make room for incoming prisoners or

face  legal action for overcrowding.88  And as previously  noted,

significant planning and coordination will often be necessary  to

accomplish  such transfers, and in this case Richard gave  little

notice  to the Department of Corrections of his request to attend

the trial in person.89

          Our  holding today is limited and tied closely  to  the

facts  of  this case.  We hold that due process does not  in  all

cases  require the transport of an incarcerated parent to a trial

to  decide  the termination of parental rights.  The trial  court

must  consider  all  relevant  factors,  including  the  disputed

issues,  whether a parent plans to testify, the  relevance  of  a

parents testimony to the disputed issues, the costs to the  state

          financial, administrative, and legal  and any threat to public

safety, in deciding whether to grant a motion by a parent  to  be

transported to a termination hearing.  On the facts of this case,

Richard  has  not  established that his due process  rights  were

violated by Judge Curdas decision not to order the Department  of

Corrections to transport Richard to the hearing but to allow  him

to participate telephonically.


          A.   Because we find that the superior court abused its
discretion  in  allowing  Henderson &  Kay  to  represent  Leslie
despite Kays prior representation of Richard in a related matter,
we  REMAND  for a determination of whether Richard was  adversely
affected by that representation in this matter, that is,  whether
Henderson & Kays conflicting interest had any appreciable  effect
on  the  outcome of the termination proceedings.  We  AFFIRM  the
superior  courts  denial  of Richards motion  for  transport  and
conclude that it did not violate Richards right to due process.
     1     Pseudonyms  have  been  used for  all  family  members
throughout this opinion.

     2    This section has since been recodified at AS 47.10.011.

     3    AS 33.30.081(f) provides:

          A court may order a prisoner who is a party .
          .  .  to a civil action . . . to appear at  a
          place   other   than  within  a  correctional
          facility only if the court determines,  after
          providing  a reasonable opportunity  for  the
          commissioner  to comment, that the  prisoners
          personal appearance is essential to the  just
          disposition  of the action.   In  making  its
          determination,   the  court  shall   consider
          available   alternatives  to  the   prisoners
          personal appearance including deposition  and
          telephone testimony.
     4    AS 33.30.061(a) provides:

          The    commissioner   shall   designate   the
          correctional facility to which a prisoner  is
          to   be   committed  to  serve  a   term   of
          imprisonment    or   period   of    temporary
          commitment.  The commissioner may designate a
          facility  without  regard to  whether  it  is
          maintained  by  the state, is located  within
          the  judicial district in which the  prisoner
          was convicted, or is located in the state.
     5     The  first requirement for the termination of parental
rights  is that a child be found by clear and convincing evidence
to   be   in   need   of   aid  under  AS  47.10.011.    See   AS
47.10.088(a)(1)(A).  DFYS alleged that Richards children had been
subjected to the following conduct as described by AS 47.10.011:

               (1)  a  parent or guardian has abandoned
          the  child as described in AS 47.10.013,  and
          the  other  parent is absent or has committed
          conduct or created conditions that cause  the
          child to be a child in need of aid under this
          . . . .
               (6)  the  child has suffered substantial
          physical harm, or there is a substantial risk
          that   the   child  will  suffer  substantial
          physical harm, as a result of conduct  by  or
          conditions  created  by  the  childs  parent,
          guardian,  or custodian or by the failure  of
          the   parent,   guardian,  or  custodian   to
          supervise the child adequately;
               (7) the child has suffered sexual abuse,
          or there is a substantial risk that the child
          will  suffer  sexual abuse, as  a  result  of
          conduct  or conditions created by the  childs
          parent,  guardian,  or custodian  or  by  the
          failure of the parent, guardian, or custodian
          to adequately supervise the child . . . ;
               (8) conduct or conditions created by the
          parent, guardian, or custodian have
                    (A)  resulted in mental  injury  to
          the child; or
                    (B) placed the child at substantial
          risk of mental injury . . . ;
               (9) conduct by or conditions created  by
          the   parent,  guardian,  or  custodian  have
          subjected the child or another child  in  the
          same household to neglect;
               (10) the parent, guardian, or custodians
          ability  to  parent  has  been  substantially
          impaired by the addictive or habitual use  of
          an  intoxicant, and the addictive or habitual
          use  of  the  intoxicant has  resulted  in  a
          substantial risk of harm to the child[.]
The  superior court found that each of these subsections,  except
subsection (1), had been proven by clear and convincing evidence.

     6    AS 47.10.088(a)(1)(B); Alaska Child in Need of Aid Rule

     7     This  section provides an alternative  basis  for  the
termination  of  parental  rights.  AS  47.10.088(a);  CINA  Rule
18(c)(1)(B).   Under AS 47.10.080(o), where there  is  clear  and
convincing  evidence  that a parent will be  incarcerated  for  a
significant part of the childs life, there is not another  parent
available to care for the child, and the incarcerated parent  has
failed  to make adequate provisions for care of the child  during
the  period  of  incarceration that will  be  during  the  childs
minority, parental rights can be terminated.

     8      25   U.S.C.   1912(d)  (2003);  see  also  CINA  Rule

     9      25   U.S.C.   1912(f)  (2003);  see  also  CINA  Rule

     10    Cannon v. Stonefield (In re Estate of McCoy), 844 P.2d
1131, 1135-36 (Alaska 1993).

     11     Peter Pan Seafoods, Inc. v. Stepanoff, 650 P.2d  375,
378-79 (Alaska 1982).

     12    Midgett v. Cook Inlet Pre-Trial Facility, 53 P.3d 1105,
1109 (Alaska 2002).

     13    Whitesides v. State, Dept of Pub. Safety, Div. of Motor
Vehicles, 20 P.3d 1130, 1134 (Alaska 2001).

     14    Id. at 1134 n.6 (citing Barcott v. State, Dept of Pub.
Safety, 741 P.2d 226, 228 (Alaska 1987)).

     15    In relevant part, Alaska R. Prof. Conduct 1.9 provides:

          (a)  A lawyer who has formerly represented  a
          client  in  a  matter  shall  not  thereafter
          represent  another person in the  same  or  a
          substantially  related matter in  which  that
          persons  interests are materially adverse  to
          the interests of the former client unless the
          former client consents after consultation.
     16     In  relevant  part,  Alaska  R.  Prof.  Conduct  1.10

          (a)  While lawyers are associated in a  firm,
          none  of  them  shall knowingly  represent  a
          client when any one of them practicing  alone
          would  be  prohibited from doing so by  Rules
          1.7, 1.8(c), 1.9 or 2.2.
     17    Alaska R. Prof. Conduct 1.9(a).

     18    17 P.3d 75 (Alaska App. 2001).

     19    573 P.2d 473, 475 (Alaska 1978).

     20     Toney v. City of Anchorage Police Dept, 950 P.2d 123,
126  (Alaska  1997) (stating that, once party  concedes  fact  at
trial,  party  may not later contest it).  See also  Wettanen  v.
Cowper,  749  P.2d 362, 364 (Alaska 1988) (holding  that,  absent
plain  error, point implicitly conceded at trial cannot be raised
on appeal).

     21    573 P.2d at 474-75.

     22    See authorities cited supra note 20.

     23    AS 47.10.088.

     24    Alaska R. Prof. Conduct 1.9(b) states:

          A  lawyer  shall  not knowingly  represent  a
          person in the same or a substantially related
          matter  in which a firm with which the lawyer
          formerly   was   associated  had   previously
          represented  a  client            (1)   whose
          interests  are  materially  adverse  to  that
          person; and         (2) about whom the lawyer
          had  acquired information protected by  Rules
          1.6  and  1.9(c)  that  is  material  to  the
          matter;  unless  the former  client  consents
          after consultation.
     25    Alaska R. Prof. Conduct 1.10(a) states:

          While lawyers are associated in a firm,  none
          of  them  shall knowingly represent a  client
          when  any one of them practicing alone  would
          be  prohibited  from doing so by  Rules  1.7,
          1.8(c), 1.9 or 2.2.
     26    Alaska R. Prof. Conduct 1.10, cmt. at 899 (2003).

     27    Id.

     28    521 F. Supp. 1032 (N.D. Ga. 1981).

     29    See, e.g., Central Milk Producers Coop. v. Sentry Food
Stores,  Inc., 573 F. 2d 988, 992 (7th Cir. 1978); Redd v.  Shell
Oil  Co., 518 F.2d 311, 316 (10th Cir. 1975) (stating that lawyer
conflict of interest problems ought to be brought up long  before
the  date of trial in an atmosphere which does not cast a  shadow
over  the  trial itself); First Small Bus. Inv. Co. of California
v.  Intercapital Corp. of Oregon, 738 P.2d 263, 270 (Wash.  1987)
(holding  that failure to file motion for disqualification  until
several   years  after  the  existence  of  basis  for  potential
disqualification was known justified denial of motion).

     30    See, e.g., Kevlik v. Goldstein, 724 F.2d 844, 848 (1st
Cir.  1984)  (holding  that,  where  record  showed  no  tangible
evidence  of improper motive, court could not, in the face  of  a
breach of a professional duty, ignore the wrong because appellees
counsel neglected to discern the conflict earlier, or even  opted
to  delay  litigation by raising the motion near the commencement
of trial); Emle Indus., Inc. v. Patentex, Inc., 478 F.2d 562, 574
(2d Cir. 1973) (holding that in extreme cases delay may be factor
in  motions to disqualify but that three-year delay here was  not
excessive  and that, as disqualification was in public  interest,
court  could  not  act  contrary to that interest  by  permitting
partys   delay  in  filing  motion  to  disqualify   to   justify
continuance of breach of Code of Professional Responsibility).

     31     See Kevlik, 724 F.2d at 848 (three years); Emle,  478
F.2d at 574 (three years).

     32    Alaska R. Prof. Conduct 1.11, cmt. at 900 (2003).

     33    Alaska R. Prof. Conduct 1.11(a) provides:

          Except as law may otherwise expressly permit,
          a lawyer shall not represent a private client
          in  connection  with a matter  in  which  the
          lawyer     participated    personally     and
          substantially   as   a  public   officer   or
          employee,  unless the appropriate  government
          agency   consents  after  consultation.    No
          lawyer  in  a firm with which that lawyer  is
          associated   may   knowingly   undertake   or
          continue  representation  in  such  a  matter
               (1)  the disqualified lawyer is screened
          from  any participation in the matter and  is
          apportioned no part of the fee therefrom; and
               (2) written notice is promptly given  to
          the  appropriate government agency to  enable
          it   to   ascertain   compliance   with   the
          provisions of this rule.
     34    Alaska R. Prof. Conduct 1.11, cmt. at 900 (2003).

     35     Alaska R. Prof. Conduct 1.10, cmt. at 899; Alaska  R.
Prof. Conduct 1.11, cmt. at 900 (2003).

     36    This reading is further bolstered by the fact that Rule
1.11  requires  the  state  agency  to  give  permission  to  the
potentially-conflicted  representation.   The   Public   Defender
Agency  could  not give an attorney permission  to  represent  an
adverse interest if that attorneys prior client objected  to  the

     37    Alaska R. Prof. Conduct 1.10, cmt. at 899 (2003).

     38    Cf. Aleut Corp. v. McGarvey, 573 P.2d 473 (Alaska 1978)
(construing prior ethical rules to state that where one member of
a  firm is disqualified from representing a client all are).  See
also  Adams v. Aerojet-General Corp., 104 Cal. Rptr. 2d 116,  122
(Cal.  App.  2001) (It is now firmly established that  where  the
attorney  is disqualified from representation due to  an  ethical
conflict, the disqualification extends to the entire firm due  to
the practicable impossibility of creating ethical walls where the
attorney   has  gained  confidential  information.);   State   v.
Hunsaker,  873 P.2d 540, 542 (Wash. App. 1994) (If an  individual
in  a  law  firm  is  precluded by RPC 1.9  from  representing  a
particular client, then all members of the law firm are  likewise
prohibited from representing the client under RPC 1.10.);  Edward
J.  DeBartolo Corp. v. Petrin, 516 So. 2d 6, 7 (Fla.  App.  1987)
(holding  that  differences  between  rules  for  government  and
private   attorneys  were  intentional  and  that  no   screening
procedures  cure  conflict  where  movement  is  between  private
firms);  Weglarz  v.  Bruck,  470  N.E.2d  21,  24  (Ill.   1984)
(determining  ethical wall to be appropriate only where  attorney
could  clearly  and  effectively  demonstrate  that  he  had   no
knowledge of the confidences and secrets of former client).   But
see  Petrovich v. Petrovich, 556 So. 2d 281, 282 (La. App.  1990)
(holding  that  firm  could represent husband  in  divorce  where
member of firm had one-time limited scope meeting with wife prior
to  joining firm and cone of silence was instituted);  Ussury  v.
St.   Joseph  Hosp.,  539  N.E.2d  700,  701  (Ohio  App.   1988)
(recognizing  by implication that screening may be  effective  in
preventing members disqualification from being extended to entire
firm);  Jenson v. Touche Ross & Co., 335 N.W.2d 720,  732  (Minn.
1983)  (holding that representation of adverse party by  attorney
of-counsel  with  firm on substantially related  matter  did  not
prevent  80-member firm from representing client with institution
of ethical wall shielding of-counsel member).

     39     J.M.R.  v.  S.T.R., 15 P.3d 253,  257  (Alaska  2001)
(holding  that  right to care and custody of ones  own  child  is
fundamental   right   recognized  by  both  federal   and   state

     40    V.F. v. State, 666 P.2d 42, 44-45 (Alaska 1983).

     41    See, e.g., LaPierre v. State, 734 P.2d 997 (Alaska App.
1987).   LaPierre  relied  on Cuyler v. Sullivan,  446  U.S.  668

     42    616 A.2d 1345 (N.J. Super. Ct. App. Div. 1992).

     43    See, e.g., Sanders, 616 A.2d at 1349-50.

     44    Richard does not specifically contend that Henderson &
Kays  ethical  breach violated his constitutional  right  to  due
process  and, apart from suggesting a violation of the  right  to
counsel,  does  not  identify any other potential  constitutional

     45     Love v. State, 457 P.2d 622, 634 (Alaska 1969)  ([W]e
have selected a simple statement to summarize our own approach to
harmless error: whether we can fairly say that the error did  not
appreciably affect the jurys verdict.).

     46    AS 33.30.081(f) (emphasis added).

     47    754 P.2d 749 (Alaska 1988).

     48    Id. at 752.

     49     B.H. v. W.S. (In re F.H.), 283 N.W.2d 202, 209  (N.D.
1979).  See also Stone v. Morris, 546 F.2d 730, 735-36 (7th  Cir.
1976)  (urging  district  court  to  consider  these  factors  in
deciding  whether to allow imprisoned civil plaintiff  to  attend
trial);  Strube  v. Strube, 764 P.2d 731, 734-35  (Arizona  1988)
(establishing rebuttable presumption that prisoner is entitled to
be  present  at  critical proceedings and urging trial  court  to
balance  these  factors  to  determine  when  such  presence   is
appropriate); Hall v. Hall, 341 N.W.2d 206, 209 (Mich. App. 1983)
(determining that while there is no absolute due process right of
prisoners to appear in court in civil cases, fundamental fairness
may  require trial court to allow plaintiff opportunity to do  so
in  certain situations, and indicating that these factors  should
form basis of courts decision).

     50    AS 33.30.081(f).

     51    Whitesides v. State, Dept of Pub. Safety, Div. of Motor
Vehicles, 20 P.3d 1130, 1137 (Alaska 2001).

     52    20 P.3d 1130 (Alaska 2001).

     53    Id. at 1139.

     54    AS 28.15.166(e) (emphasis added).

     55    20 P.3d at 1134.

     56    424 U.S. 319 (1976).

     57    Id. at 335.

     58    Whitesides, 20 P.3d at 1135-36.

     59    Id. at 1136-37.

     60    Id. at 1137.

     61    Id.

     62    Id.

     63    Id. at 1137-38.

     64    Id. at 1138.

     65    Id. at 1138-39.

     66    Id. at 1139.

     67    424 U.S. 319 (1976).

     68    53 P.3d 1105 (Alaska 2002).

     69    Id. at 1108, 1112.

     70     Id.  at 1112 (referring to Jay M. Zitter, Annotation,
State  Prisoners  Right to Personally Appear at  Civil  Trial  to
Which He is a PartyState Court Cases, 82 A.L.R.4th 1063 (1990)).

     71    Id. at 1112, n. 22.

     72    Id. at 1113.

     73     754 P.2d 749 (Alaska 1988).

     74     Appellant  argues  that E.J.S.  was  incarcerated  in
Washington State, and as such, is distinguishable from this case.
The  opinion  is  silent on E.J.S.s location,  although  it  does
indicate that the child was born in Washington State and that the
mother  moved  to Alaska with the child shortly thereafter.   754
P.2d at 750.

     75    Id. at 752.

     76    Id.

     77    Id.

     78    Id. at 751.

     79    424 U.S. 319 (1976).

     80    Id. at 335.

     81    J.M.R. v. S.T.R., 15 P.3d 253, 257 (Alaska 2001).

     82    Flores v. Flores, 598 P.2d 893, 895 (Alaska 1979).

     83    20 P.3d at 1136-37.

     84    Id. at 1136.

     85    Id. at 1137.

     86     See  Lashbrook v. Lashbrook, 957 P.2d  326,  330  n.2
(Alaska  1998)  (defendant  in  custody  dispute  precluded  from
challenging facts that constitute elements of offenses  to  which
he  pled no contest); Burcina v. City of Ketchikan, 902 P.2d 817,
822  (Alaska 1995) (holding, based on public policy grounds, that
a  civil plaintiff is collaterally estopped from relitigating any
element  of  a  criminal  charge  to  which  he  has  pled   nolo

     87    See supra Part IV.C.2.b at 37-40.

     88    See supra Part IV.C.2.c at 40.

     89    Id.