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GAL’s representation of corporation counsel in unrelated matter didn’t create conflict of interest in TPR case

La Crosse County HSD v. C.J.T., 2015AP252, District 4, 10/16/15 (one-judge decision; ineligible for publication); case activity

The fact that the County’s attorney handling this TPR proceeding retained the GAL in the case to represent the her in an unrelated personal injury matter didn’t create a conflict of interest that required a new trial.

The GAL had been appointed to represent the interests of J.M., the child, during the underlying CHIPS action. A year after the TPR petition was filed, the lawyer handling the case for the County hired the GAL to represent her in the personal injury case. (¶¶33-34). The court of appeals rejects C.J.T.’s claim that this resulted in the GAL having an “allegiance” to the County’s lawyer that created a conflict of interest under SCR 20:1.7(a) (available in this document):

¶37     We conclude, applying a plain language analysis of SCR 20:1:7(a) to the facts of this case, that C.J.T. fails to demonstrate that the GAL had a conflict of interest by representing J.M.’s best interests in this case and the Department’s counsel in a separate unrelated matter. C.J.T. does not provide a persuasive argument that her representation of J.M.’s best interests was directly adverse to Department’s counsel. On the contrary, the GAL’s representation of counsel was completely unrelated to this termination proceeding. We acknowledge that there is the potential for adverse representation here if the GAL took a position that challenged the Department’s position, but that is not the case. As we indicated, the GAL entered an admission on J.M.’s behalf to terminating C.J.T.’s parental rights to J.M., a position strongly supported by the Department. Moreover, the GAL’s admission occurred approximately one year before her representation of Clair. Under these facts, we fail to see how C.J.T. could have developed an improper alliance with the Department by representing Clair as well as J.M.’s best interests. In other words, the GAL had already aligned J.M.’s best interests with the Department’s interests long before the GAL was retained to represent Clair. Thus, we see no conflict on that basis. This rationale also supports our view that C.J.T. has not shown that there was a significant risk that the GAL’s representation of Department counsel materially limited her responsibility to J.M.’s best interests.

The court also rejects C.J.T.’s claims that her trial attorney was ineffective for failing to object to the admission of certain testimony provided by two social workers and statements made by the GAL during her opening and closing arguments encouraging the jury to apply the best interests of the child standard in deciding whether grounds existed to terminate C.J.T.’s parental rights to J.M. In a fact-intensive discussion, the court concludes either that there was no basis for trial counsel to object to the testimony or arguments or that any failure to do so was not prejudicial. (¶¶11-29). The most notable of the ineffective claims is C.J.T.’s argument that trial counsel should have objected to the GAL asking the jurors to put themselves in C.J.T.’s position to understand what a parent would have done to insure the health and safety of his or her child. The court holds this was not a “golden rule” violation:

¶29     …. As the circuit court aptly explained, a golden rule violation involves asking the jurors to place themselves in the plaintiff’s shoes in civil cases for the purposes of determining compensation, or the victim’s shoes in criminal cases. See State v. DeLain, 2004 WI App 79, ¶23, 272 Wis. 2d 356, 679 N.W.2d 562, aff’d, 2005 WI 52, 280 Wis. 2d 51, 695 N.W.2d 484. The underlying reason for imposing this rule is that these types of statements “appeal to the jurors’ sympathy for persons who have been injured or victimized by a crime.” Id. C.J.T. has failed to point to any supporting case law for the proposition that the rule also applies to asking the jurors to put themselves in the parent’s place in TPR cases. …. Here, the GAL asked the jurors to put themselves in C.J.T.’s position to understand what a parent would have done to insure the health and safety of his or her child. C.J.T. is neither a plaintiff in a civil case or a victim. We find no violation of the “golden rule” here.

Finally, the court rejects C.J.T.’s argument that she should get a new trial because of the admission of hearsay evidence at the grounds trial about her drug use. There was other ample evidence about C.J.T.’s drug use, including C.J.T.’s own admission to drug use during her testimony at trial and testimony from C.J.T.’s therapist that C.J.T. admitted to using drugs. Thus, any error was harmless. (¶¶30-32).

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