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TPR – Effective Assistance of Counsel – Conflict of Interest

Dunn County Human Services v. Eric R., 2011AP2416, District 3, 9/5/12

court of appeals decision (1-judge, ineligible for publication); case activity

That counsel for the parent on a termination petition had, while serving as a family court commissioner 19 months earlier, entered a child support order against the parent, did not alone establish a conflict of interest.  Supreme Court Rule 20:1.12(a) (“a lawyer shall not represent anyone in connection with a matter in which the lawyer participated personally and substantially as a judge”), discussed and applied – essentially, the court concludes that the TPR isn’t the same “matter” as the earlier child support for several reasons, including:

¶11      … However, on the merits, we note that the circuit court found that the facts presented at both hearings were “substantially different.” Specifically, the court found that, at the child support hearing, “no finding on issues of custody and/or placement were made,” and “none of Eric R.’s character traits, the quality of his parenting skills, or his level of involvement in the minor child’s life were considered.”  As for the termination of parental rights case, the court found Eric’s “qualities as a parent were a central consideration” and the jury was required to determine whether Eric abandoned Autumn and/or failed to assume parental responsibility.  We agree with the circuit court that the child support case and the termination of parental rights case involved substantially different facts.

The “same matter” test appears to turn on “the extent to which the matters involve the same basic facts, the same or related parties, and the time elapsed,” ¶8, quoting comment to SCR 20:1.11. Thus, an instruction to consider whether the parent offered, and was financially able, to pay support, ¶18, didn’t establish an identity of “matters,” because “any child support payment was only a minor part of the jury’s overall consideration,” ¶¶19-20.

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