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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
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
e-mail correction@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
RICHARD B., ) Supreme
Court No. S-10127
)
Appellant, ) Superior Court
No.
) 4BE-97-84/85 CP
v. ) 4BE-86-68 CP
)
STATE OF ALASKA, ) O P I N I O N
DEPARTMENT OF HEALTH AND )
SOCIAL SERVICES, DIVISION OF ) [No. 5703 - June 13,
2003]
FAMILY AND YOUTH SERVICES, )
)
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. INTRODUCTION
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.
II. FACTS AND PROCEEDINGS
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
successfully.
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 47.10.011.5 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.
III. STANDARD OF REVIEW
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
IV. DISCUSSION
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
consents.17
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
related.
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
representation.[21]
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
Richards.
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
reconsideration.
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
attorney.
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
defendants.
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
level.
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
proceedings.
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
that:
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
Dakota:
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
action.50
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
explained,
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
truth.51
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
consider:
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
entail.[57]
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
testimony.66
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
children
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
analysis.
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.
V. CONCLUSION
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
chapter;
. . . .
(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
18(c)(1)(A).
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
18(c)(2)(B).
9 25 U.S.C. 1912(f) (2003); see also CINA Rule
18(2)(C)(3).
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
provides:
(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
unless:
(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
representation.
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
constitutions).
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
(1984).
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
violation.
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
contendere.).
87 See supra Part IV.C.2.b at 37-40.
88 See supra Part IV.C.2.c at 40.
89 Id.
