RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5222-15T2

 A-5223-15T2

NEW JERSEY DIVISION OF CHILD

PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

v.

G.S. and K.S.,

Defendants-Appellants.

______________________________

IN THE MATTER OF 

A.S. and B.S., Minors.

_______________________________

Argued October 31, 2016 – Decided

Before Judges Sabatino, Haas and Currier.

On appeal from Superior Court of New Jersey, 

Chancery Division, Family Part, Monmouth 

County, Docket No. FN-13-172-15.

T. Gary Mitchell, Deputy Public Defender,

argued the cause for appellants (Joseph E. 

Krakora, Public Defender, attorney; Mr. 

Mitchell, of counsel and on the briefs).

Deirdre A. Carver, Deputy Attorney General, 

argued the cause for respondent (Christopher 

S. Porrino, Attorney General, attorney; 

Melissa H. Raksa, Assistant Attorney General, 

of counsel; Ms. Carver, on the brief).

Nancy P. Fratz, Assistant Deputy Public 

Defender, argued the cause for minors A.S. and 

APPROVED FOR PUBLICATION

November 22, 2016

APPELLATE DIVISION

November 22, 2016
A-5222-15T2

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B.S. (Joseph E. Krakora, Public Defender, Law 

Guardian, attorney; Joseph F. Suozzo, Deputy 

Public Defender, of counsel; Ms. Fratz, on the 

brief).

Theodore T. Reilly argued the cause for amicus 

curiae New Jersey State Bar Association (New 

Jersey State Bar Association, attorneys; 

Thomas H. Prol, of counsel; Christopher J. 

Carey, Mr. Reilly and Dina M. Mikulka, on the 

brief).

The opinion of the court was delivered by

SABATINO, P.J.A.D.

On leave granted, we review the Family Part's series of orders 

that concern the potential need to disqualify one or both staff 

attorneys from the Office of Parental Representation ("the OPR") 

who respectively represent the father and the mother in defending 

this child welfare case. The pertinent conflict-of-interest 

questions now before us were prompted by co-defendants' advocacy

of competing parenting plans for the future care of their twin 

children. 

The issues presented are of first impression. In particular, 

we examine under the applicable Rules of Professional 

Responsibility ("RPCs") and case law: (1) whether an actual or 

potential conflict of interest arises when staff attorneys from 

the same OPR regional office each represent a parent having

interests or positions divergent from that of the other parent; 

(2) any such conflicts may be waived by the clients, and, if so, 
A-5222-15T2

3

in what manner; and (3) what is the appropriate role of the court 

in dealing with such representational issues when they surface.

For the reasons that follow, we affirm, with some 

modification, the trial judge's determination to conduct a hearing 

to explore the conflict and waiver issues that arose in this 

particular case. 

We agree with the OPR, the Office of Law Guardian ("the OLG" 

or "the Law Guardian"), and the amicus New Jersey State Bar 

Association that, with appropriate screening measures, the law 

does not categorically prohibit or even presumptively disfavor 

staff attorneys working out of the same OPR regional office from 

separately defending individual parents in a Title Nine or Title

Thirty case. In addition, when a significant divergence arises 

between the parents during the course of such litigation, the 

actual or potential conflict often may be mutually waivable by 

those clients, with appropriate consultation with counsel and 

substantiation of that waiver. 

We also conclude that the trial court has a proper

institutional role in assuring that the zealous independence of 

the staff attorneys will not be compromised, and that the

confidentiality of client communications and attorney work product 

will be scrupulously maintained. The court retains the authority 

and discretion to conduct a hearing to explore such matters on a 
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4

case-by-case basis to address specific instances where 

particularized concerns have arisen about the propriety of ongoing

representation by the staff attorneys or the sufficiency of any 

client waivers and screening measures. 

Lastly, we recommend that the representational issues 

presented here be prospectively examined in a broader context by

the Family Practice Committee or some other designated Supreme 

Court Committee. Such review may include the potential drafting 

of a provision in Part V of the Rules of Court to address these 

circumstances. If adopted, those new rules might replicate some, 

if not all, of the facets applicable to dual representation by 

staff attorney public defenders in criminal cases under the 

principles expressed in State v. Bell, 90 N.J. 163 (1982) and the 

possibly analogous procedures set forth in Rule 3:8-2.

I.

Background of the Parties and This Litigation

Defendants are the parents of twins, A.S. and B.S., born in 

December 2012. Defendants entered into an agreement in 2013 to 

share joint legal custody of the children. Defendant G.S., the 

mother, was designated as the primary residential custodian, and 

defendant K.S., the father, who had more recently become involved

in the twins' lives, was afforded visitation with them supervised 

by G.S.
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In 2014 the Division of Child Protection and Permanency ("the 

Division") received two referrals concerning these children: (1) 

a report of a July 2014 domestic violence incident between 

defendants, which allegedly occurred in the presence of the 

children and resulted in G.S.'s arrest for simple assault of K.S.; 

and (2) a report that G.S. had been arrested in October 2014 for 

engaging in shoplifting while the children were in her company. 

Defendants claimed they were no longer in a relationship at that 

time. They both denied having a history of substance abuse or 

domestic violence. The Division found the allegations were not 

established and at that point closed the case. 

On January 29, 2015, the Division received a third referral 

concerning this family, this time from the twins' paternal 

grandmother. She reported that the children had been left in her 

care ten days earlier, when defendants, who she claimed were using 

heroin, had been involved in a physical altercation. The 

Division's ensuing investigation revealed to it that during an 

argument in the children's presence, G.S. accused K.S. of stealing 

her phone, broke the top off of a glass bottle, and then stabbed 

K.S. in the arm. 

G.S. was consequently charged with committing aggravated 

assault with a weapon as an act of domestic violence. K.S. stated 

to the Division that G.S. was a heroin addict. He denied using 
A-5222-15T2

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heroin himself, but admitted to using Xanax and Percocet. G.S., 

meanwhile, denied using heroin. She did not believe that K.S., 

who had used heroin in the past, was currently using it because 

he had "completed detox." Drug screens conducted on January 30, 

2015 revealed that G.S. tested positive for opiates and morphine, 

and that K.S. tested positive for opiates, morphine, and oxycodone. 

G.S. later admitted to using heroin.

On February 5, 2015, the Division performed an emergency (or 

"Dodd" removal1) of the children from defendants' care, based on 

G.S.'s admission to using ten bags of heroin a day; K.S.'s 

admission of misusing prescription medication; and both parents

having tested positive for opiates and morphine. At the request 

of G.S., the children were placed by the Division with their 

maternal aunt, in whose care they remain to date. The Division 

located K.S. later that night, who said at that time he "hoped 

that the children could be with their maternal aunt." 

Four days later, the Division filed an order to show cause 

and a verified complaint in the Family Part seeking the care, 

custody, and supervision of the children under Title Nine, N.J.S.A.

9:6-8.21 to -8.73 (regarding abuse and neglect), and also under 

 

1 A "Dodd removal" refers to the emergency removal of a child 

without a court order, pursuant to the Dodd Act, N.J.S.A. 9:6-8.21 

to -8.82. N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J.

17, 26 n.11 (2011).
A-5222-15T2

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Title Thirty, N.J.S.A. 30:4C-12 (regarding the care and 

supervision of children). The application was mainly based on 

defendants having tested positive for opiates and morphine and 

their admitted drug use. 

The OPR assigned two deputy public defenders from the same 

regional field office, OPR-Central, to represent G.S. and K.S. at 

the initial court hearing. As we will discuss infra, there are 

currently eight regional OPR offices that cover the State's twentyone counties.2 The OPR-Central regional office handles cases 

arising in Middlesex and Monmouth counties.

According to her certification filed with the Family Part 

after the concerns about potential conflicts in this case arose, 

the staff attorney assigned to represent the father specifically 

informed him before the initial post-removal hearing in February 

2015 that there were safeguards within the OPR office, described 

in more detail infra, to "ensure confidentiality for each client." 

The staff attorney further advised K.S. that a "process of review" 

had been undertaken to determine whether a potential for conflict 

existed. She explained to K.S. that the trial court "would likely 

question him regarding his understanding of any possible conflict 

of interest," stemming from the fact that two staff attorneys from 

 

2 See Office of the Public Defender, Regional Office of Parental 

Representation Offices, http://www.nj.gov/defender/regional/#3 

(last visited November 16, 2016).
A-5222-15T2

8

the same OPR office had been assigned to represent different 

clients in the case. According to the attorney's certification, 

K.S. responded that he understood her disclosures, and said that 

he wanted her to represent him. There is no indication in our

record that K.S. signed a written waiver of a potential conflict, 

or that his assent was otherwise documented in any manner, aside 

from his signing the generic Public Defender application form.

The certification filed by the OPR staff attorney for the 

mother did not address whether she had made similar representations 

about the potential for conflict to G.S. at the outset of the 

case. However, as a separate certification from OPR-Central's 

managing attorney attests, the OPR has a standard protocol 

regarding the assignment of staff attorneys to co-defendants in 

the same case, and the protocol was followed here. As part of 

that protocol, which we discuss more extensively, infra, the OPR 

staff attorneys are required at the outset of each case to evaluate 

whether it presents a potential conflict of interest that could 

result in a significant likelihood of prejudice to either or both 

defendants. In any event, the two assigned OPR staff attorneys 

have separately and continuously represented K.S. and G.S. since 

the inception of this case in February 2015. 

At the conclusion of the February 9, 2015 hearing, the trial 

court found that the Division's emergency removal was required due 
A-5222-15T2

9

to imminent danger to the children's lives based on defendants' 

substance abuse, but not domestic violence. The court issued an 

order to show cause granting the Division care, custody, and 

supervision of the children and awarding defendants supervised 

visitation. The court further ordered: defendants to submit to 

substance abuse evaluations; G.S. to attend inpatient substance 

abuse treatment; the Division to find a suitable domestic violence 

program for G.S.; and K.S. to meet with the Division's domestic 

violence liaison. Defendants consented to the Title Nine removal 

of the twins and agreed to the court-ordered services.

During a compliance review hearing in September 2015, the 

Division withdrew its Title Nine abuse and neglect claim against 

defendants because it found that the allegations were "not 

established." By order entered on that date, G.S. and K.S. 

consented to the continuing jurisdiction of the court for the 

provision of substance abuse services pursuant to N.J.S.A. 30:4C12. G.S. singularly was ordered to engage in a batterer's 

intervention program. G.S. subsequently received substance abuse 

treatment, but she unfortunately relapsed.

The Parents' Divergent Permanency Plans

On February 1, 2016, after the children had been in placement 

with the maternal aunt for twelve months, a permanency hearing was 

scheduled before the Family Part in accordance with N.J.S.A. 30:4C-
A-5222-15T2

10

61.2(a)(2). The Division requested that the permanency goal change 

from reunification to Kinship Legal Guardianship ("KLG") with the 

maternal aunt pursuant to N.J.S.A. 30:4C-90. The staff attorney 

for G.S. represented to the court that her client, who was not 

present in court that day because she had been incarcerated on a 

separate offense, agreed with that goal and opposed reunification

of the twins with K.S. Meanwhile, K.S., who was present in court 

that day and who was pursuing substance abuse treatment, disagreed 

with the mother's position. According to the representations of 

his own staff attorney, K.S. sought a goal of reunification of the 

twins with him once he obtained a stable residence.

The Law Guardian requested a three-month extension to afford 

K.S. an opportunity to present an appropriate permanency plan. 

The Law Guardian noted to the court that the children "very much 

enjoy[ed]" their visits with their father, which were apparently 

conducted at the paternal grandmother's house. The trial judge 

agreed with the request, issuing an order on that date granting a 

permanency plan extension of one month to enable K.S. to find 

suitable housing and continue his substance abuse treatment.

The Conflicts Issue Identified and Addressed

At the conclusion of the February 1 hearing, the trial judge 

sua sponte raised the issue of whether a potential for prejudicial 

conflict existed because the parents had submitted competing 
A-5222-15T2

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permanency plans. The staff attorneys responded that they did not 

think there was a conflict, but agreed to speak to their managing 

attorney about it. Consequently, in the permanency order issued 

that day, the judge directed the parties to submit briefs on the 

conflicts issue. 

Later that same day, G.S.'s attorney discussed the judge's 

concerns with her client. According to her certification, she

explained to G.S. that she could continue to provide G.S. with 

independent legal representation, and advocate for her position 

notwithstanding that another attorney from OPR-Central would seek 

a different outcome for K.S., and that each attorney operated 

independently and would protect client confidences. There is no 

indication in our record that G.S. executed a written conflicts 

waiver. Nor does the record contain a conflicts waiver signed by 

K.S.

The trial judge conducted an initial oral argument on the 

conflicts issue on February 25, 2016. The staff attorneys argued 

that they should be permitted to continue representing each of the 

parents because there was no per se conflict of interest as a 

result of their representation. They further asserted that under 

analogous principles in Bell, supra, 90 N.J. at 173, the OPR was 

responsible for making the determination of whether there was an 

actual or potential conflict. The staff attorneys argued that the 
A-5222-15T2

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OPR's conflict assessment was subject to "substantial deference" 

by the court, and was not appropriate for judicial review because 

it would involve the consideration of potentially privileged 

communications. Counsel admitted that they did not know what 

decision-making process was used by the OPR in determining whether 

to assign outside pool attorneys in multiple-representation cases. 

The Division and Law Guardian took no position at that time, except 

the Division argued that if the court found a conflict, defendants 

should be required to place any waiver of that conflict on the 

record.

In a written decision issued on March 17, 2016, the trial 

judge found that there was an actual conflict of interest between 

G.S. and K.S. from which prejudice would be presumed. The judge 

perceived that there was "very little in the way of 'identity of 

interests'" between defendants. As the judge described it, the 

matter began as a result of domestic violence, and neither 

defendant had shown an effort to dispel that atmosphere through 

counseling. The judge further noted that defendants "initially 

sought to portray the other as the one with an addiction to heroin, 

while at the same time denying [his or her] own involvement."

Thereafter, K.S. showed positive results to substance abuse 

treatment, but G.S. relapsed. The judge also observed that 

defendants each sought at the permanency hearing to obtain a more 
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favorable relationship with the children at the expense of the 

other, insofar as G.S. sought a permanency goal of KLG with a 

relative who could "presumably be friendlier to her," whereas K.S. 

sought to have the children reunified with him, thereby controlling 

G.S.'s access to the children.

As a result, the judge directed the parties, in accord with

analogous principles for criminal cases under Rule 3:8-2, to appear 

at a hearing to address the apparent conflicts and whether 

defendants wanted to enter a knowing and voluntary waiver. The 

judge held that if both parents entered conflicts waivers, the 

matter would be resolved, but if either parent did not waive, "the 

court will be forced to require one or both OPR attorneys to 

withdraw from the case."

Beyond this case-specific ruling, the judge announced in his 

written opinion that he would institute the following procedural 

framework in all cases currently on his Children-In-Court docket 

where staff attorneys from the same OPR office represented codefendant parents:

In the future, at the outset of any case where

the Public Defender wishes to employ two OPR 

staff attorneys to represent the parents, the 

court will expect full compliance with State 

v. Bell and R.[]3:8-2. It will expect a motion 

to be made on the record seeking permission 

for dual representation of the parents. It 

will hear and evaluate the motion using the 

same procedures it has outlined above.
A-5222-15T2

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On March 22, 2016, the judge issued an order granting K.S.'s 

request to adjourn the permanency hearing, which had been scheduled 

for that date, "so that [the] defense may review the [March 17, 

2016] Opinion and decide whether or not to ask for a stay." 

Defendants moved for reconsideration of the court's March 17, 

2016 ruling. Defendants argued that the court erred in applying 

Rule 3:8-2 to a Family Part matter and also in its application of 

Bell, supra, 90 N.J. at 173. Defendants argued that different 

permanency goals, standing alone, do not constitute a prejudicial 

conflict that would disqualify the public defenders from 

representing defendants. Defendants also expressed concern that,

in reaching its decision, the court did not have the benefit of 

reviewing the measures that have been put in place by OPR-Central 

to insure that each defendant was provided with independent counsel 

fully able to preserve confidences and represent his or her 

client's interests. 

The trial judge conducted oral argument in May 2016 on the 

motion for reconsideration. The two staff attorneys appeared on 

behalf of their clients. G.S. was present, but K.S. was not 

because he had been hospitalized for a drug overdose. In addition, 

an OPR appellate attorney appeared for the first time in the matter 

to present oral argument on behalf of both defendants and offer 

historical background about how the OPR shifted from a 
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15

representation model that relied heavily on pool attorneys to a 

model that now generally utilizes staff attorneys. The OPR 

appellate attorney urged the court to allow the conflicts issues 

to be addressed internally within the OPR, and that the court 

should give substantial deference to the OPR's handling of these 

issues. The Division took no position on the conflicts issues.

The Law Guardian argued that there was at least a potential for 

conflict, which should be addressed as quickly as possible. 

The trial judge denied the motion for reconsideration. In a 

lengthy written opinion issued on June 14, 2016, the judge again 

found that defendants here were "in clear conflict" from which 

prejudice may be presumed. The judge rejected the OPR's contention

that a court has no further role in a conflicts matter once it is 

satisfied that the "prophylactic measures" are in place and that 

the staff attorneys are committed to "fidelity and independence." 

The judge expressed concern that the court and the parties might 

not know if such safeguards were being followed by the OPR, and 

even if they were followed, the safeguards might not address every 

possible conflict. For example, the judge was troubled by his 

impression that the OPR does not currently have in place "a policy 

to require that each staff attorney be assigned a separate 
A-5222-15T2

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investigator," nor would the OPR "commit to that being a 

requirement in the future."3 

In denying reconsideration, the judge also stated in his 

opinion that he would adhere to the following protocol in all 

cases where the OPR seeks to have staff attorneys from the same 

office represent parents in child welfare cases. The judge's 

protocol may be summarized as follows: 

1. The OPR must first apply to the court at 

the outset for permission to represent both 

parents. During that hearing, the OPR has the 

burden to: explain why it cannot follow the 

"norm" set forth in Bell, supra, 90 N.J. at 

174, and assign co-defendants to outside pool 

counsel; and show why joint representation by 

staff attorneys is the "last resort available" 

to the OPR. "Joint representation" will be 

denied if the OPR fails to establish either 

factor. 

2. If the OPR establishes the above threshold 

factors, the court will then conduct a 

thorough examination on the record and in the 

presence of the defendants, regarding any 

information indicating a real or potential 

conflict between the defendants. 

3. If the court is satisfied that a real or 

potential conflict exists, it may seek 

knowing, willing and voluntary waivers from 

the defendants. If a waiver is obtained, the 

court will "consider this as a part of the 

overall circumstances to be evaluated on the 

issue of joint representation."

 

3 At oral argument on appeal, the OPR appellate attorney 

represented to this court that separate investigators are assigned 

to the attorney for each parent, although that practice was not 

documented in the trial court. 
A-5222-15T2

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4. If either parent does not waive the 

conflict, and there is evidence of a present 

conflict, the OPR will be directed to assign 

pool attorneys for the parents. If only a 

potential conflict has been identified, the 

court will determine whether there is a 

significant likelihood of prejudice such that 

pool attorneys will be required. And, on 

proof of no prejudice to the other parent from 

allowing opposing staff attorneys to remain 

in the case, the court may grant the OPR's 

request.

Defendants moved again for reconsideration and other relief, 

including a stay of the trial court's rulings to accommodate the 

filing of a motion for leave to appeal with this court. The trial 

court granted the request for a continuation of the stay in an 

order on August 2, 2016. In an attached written statement of 

reasons, submitted pursuant to Rule 2:5-6(c), the judge clarified 

that he had not yet disqualified either of the OPR-Central staff 

attorneys from representing defendants. Instead, he had only 

directed counsel to appear for a hearing as to "whether the 

continued representation of one or both parents by staff attorneys 

from the same OPR office is warranted."

The Present Appeals

Subsequently, we granted leave to appeal to G.S. (A-5222-

15T2) and K.S. (A-5223-15T2), consolidated and accelerated those 

appeals, granted defendants' application to extend the stay 

pending appeal, and directed that the record shall include the 

trial judge's August 2, 2016 Statement of Reasons. Because of the
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18

importance of the issues affecting the practice of law and a 

lawyer's ethical responsibilities, we invited the New Jersey Bar 

Association to appear as amicus curiae. The Bar Association kindly 

accepted our invitation, filing a brief and also appearing at oral 

argument. In the meantime, the permanency hearing for the children 

in the trial court has been adjourned.

Although there is substantial agreement among the respective 

positions taken by counsel on the appeal, the Law Guardian differs 

with the position taken by defendants through the OPR appellate 

attorney as to whether a hearing was warranted in this case to 

explore conflict issues after the parents had advocated divergent 

parenting plans. The OPR appellate attorney maintains that the 

competing plans and the other circumstances here do not rise to 

the level of a prejudicial conflict warranting judicial inquiry. 

In any event, the OPR appellate attorney maintains that adequate 

client waivers have been procured to remediate any such presumed 

conflicts of interest. 

The Law Guardian, however, argues that there is a sufficient 

concern of potential conflict here to justify the trial court's 

inquiries into the topic and its decision to order a hearing to 

explore the issue. In that regard, the Law Guardian expresses 

concerns that if the representation of both staff attorneys 

continues without being judicially validated in some way at this 
A-5222-15T2

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time, the children might be disadvantaged by continued delay and 

uncertainty if either or both parents claim on appeal from a final 

permanency order that their trial attorney was compromised, and 

the result below was thus tainted. 

The Bar Association declines to take a position on whether a 

hearing is justified in this case, but instead presents broader 

principles relating to the assignment of defense counsel in Title

Nine and Title Thirty cases and the importance of presumptively 

deferring to the professional judgment of the attorneys involved.

All three counsel who substantively briefed the appeal agree 

that the principles for civil representation of parents in a Title

Nine or Title Thirty action are not identical with those in a 

criminal defense context addressed in Bell and Rule 3:8-2. They 

all respectfully contend that the prospective guidelines announced 

by the trial court – including a demonstration at the outset of a 

child welfare case that no pool attorneys are available in the 

county to represent the co-defendant parents – are unwarranted. 

They maintain that the OPR's general arrangement of allowing two 

staff attorneys in the same office to represent these parents, 

with appropriate screening, should be presumptively allowed unless 

a case-specific conflict emerges. The Division and the Attorney 

General continue to take no position.

II.
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The Parents' Rights to Effective Representation 

Parents in New Jersey charged with civil abuse and neglect 

under Title Nine or who are subject to Title Thirty termination 

proceedings have a constitutional right to counsel under the due 

process guarantees of Article I, paragraph 1 of the State 

Constitution, and a statutory right under N.J.S.A. 9:6-8.43(a), 

9:6-8.30(a), and 30:4C-15.4(a). N.J. Div. of Youth & Family Servs. 

v. B.R., 192 N.J. 301, 305 (2007); N.J. Div. of Youth & Family 

Servs. v. E.B., 137 N.J. 180, 186 (1994); Crist v. N.J. Div. of 

Youth & Family Servs., 135 N.J. Super. 573, 576-77 n.2 (App. Div. 

1975). The statutory and constitutional rights of the parent must 

be "scrupulously protected." N.J. Div. of Youth & Family Servs. 

v. G.M., 198 N.J. 382, 397 (2009).

A right to counsel is "the right to the effective assistance 

of counsel." McMann v. Richardson, 397 U.S. 759, 771 n.14, 90 S. 

Ct. 1441, 1449 n.14, 25 L. Ed. 2d 763, 773 n.14 (1970). In cases 

brought against a parent by the Division, the effectiveness of 

defense counsel is assessed by the two-part test set forth in 

Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 

2064, 80 L. Ed. 2d 674, 693 (1984), applicable in criminal cases. 

N.J. Div. of Youth & Family Servs. v. B.H., 391 N.J. Super. 322, 

345 (App. Div.), certif. denied, 192 N.J. 296 (2007). That test 

examines whether (1) the attorney's performance was deficient and 
A-5222-15T2

21

(2) whether the deficient performances actually prejudiced the 

client. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 

80 L. Ed. 2d at 693. See also RPC 1.1 (imposing on lawyers the 

ethical duty of competence). 

To be effective, counsel "must provide the client with 

undivided loyalty and representation that is 'untrammeled and 

unimpaired' by conflicting interests." State v. Norman, 151 N.J.

5, 23 (1997) (quoting State v. Bellucci, 81 N.J. 531, 538 (1980)). 

"[A]n attorney hobbled by conflicting interests that so thoroughly 

impede his ability to exercise single-minded loyalty on behalf of 

the client cannot render the effective assistance guaranteed by 

our constitution." State v. Cottle, 194 N.J. 449, 467 (2008). 

Indigent parents in Title Nine and Title Thirty proceedings 

are entitled to representation provided through the Office of the 

Public Defender. N.J. Div. of Youth & Family Servs. v. R.D., 207 

N.J. 88, 113 (2011) (citing N.J.S.A. 9:6-8.23(a),(b); N.J.S.A.

9:6-8.43(a); N.J.S.A. 30:4C-15.4). See also In re Adoption of 

Child by J.E.V., 226 N.J. 90, 106 (2016) (due process guarantee 

requires appointment of counsel to some indigent litigants). 

"Simple justice demands nothing less in light of the magnitude of 

the consequences involved." Crist, supra, 135 N.J. Super. at 575. 

A child who is the subject of a Title Nine or Title Thirty 

proceeding is also entitled to representation by counsel employed 
A-5222-15T2

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in a separate unit of the Public Defender's Office, referred to 

as a "law guardian." J.B. v. W.B., 215 N.J. 305, 332 (2013) 

(citing N.J.S.A. 9:6-8.21(d); N.J.S.A. 9:6-8.23; N.J.S.A. 30:4C15.4(b)). 

History of the Public Defender and the Creation of the OPR

The Office of the Public Defender was established in 1967 

under the Public Defender's Act, N.J.S.A. 2A:158A-1 to -25, to 

replace "the assigned counsel system with a statewide program for 

the defense of indigents at public expense." State v. Western

World, Inc., 440 N.J. Super. 175, 193-94 (App. Div. 2015), certif. 

denied, 225 N.J. 221 (2016). The Public Defender was initially 

required to provide representation, and all necessary services and 

facilities of representation, to indigent criminal defendants 

charged with an indictable offense. N.J.S.A. 2A:158A-5. 

Subsequent legislation in 1974 assigned that right of 

representation to abuse and neglect proceedings under Title Nine, 

N.J.S.A. 9:6-8.43(a),4 and in 1999 to termination cases under Title

Thirty, N.J.S.A. 30:4C-15.4. Thereafter, the Public Defender

created the OPR, formerly known as the Parental Representation 

Unit ("PRU"), to represent parents in both Title Nine and Title

 

4 In 1974, the responsibility for providing counsel for parents in 

Title Nine cases was assigned to the then-established Department 

of the Public Advocate. See Office of the Public Defender, 

History, http://www.nj.gov/defender/history/ (last viewed on 

November 16, 2016); E.B., supra, 137 N.J. at 186. 
A-5222-15T2

23

Thirty cases.

The Public Defender is empowered to appoint deputy public 

defenders, N.J.S.A. 2A:158A-6, and also to maintain and compensate 

"trial pools of lawyers" on a case-by-case basis. N.J.S.A.

2A:158A-7(c),(d). Pool attorneys may be engaged "whenever needed 

to meet case load demands, or to provide independent counsel to 

multiple defendants whose interests may be in conflict." N.J.S.A.

2A:158A-9 (emphasis added). 

All communications between the defendant clients and any 

lawyers in the Public Defender's Office "shall be fully protected 

by the attorney-client privilege to the same extent and degree as 

though counsel has been privately engaged." N.J.S.A. 2A:158A-12. 

The Public Defender's Office has the ultimate responsibility to 

represent the client and is the client's attorney of record, 

regardless of whether the lawyers it assigns are staff or pool 

attorneys. Turner v. Dep't of Human Servs., 337 N.J. Super. 474, 

478 (App. Div.), certif. denied, 168 N.J. 294 (2001). 

The statutory scheme prescribes that the Public Defender is 

to make selections of staff and pool attorneys "on a basis 

calculated to provide the respective defendants with competent 

counsel in the light of the nature, complexity and other 

characteristics of the cases, the services to be performed, the 

status of the matters, and other relevant factors." N.J.S.A.
A-5222-15T2

24

2A:158A-8. In selecting attorneys to serve as counsel for indigent 

parents, the Public Defender's Office also must: (1) consider an 

attorney's willingness to make a commitment to represent a parent; 

(2) ensure that an attorney has received proper training; and (3) 

provide for an internal administrative unit to supervise, 

evaluate, and select non-staff counsel to represent indigent 

parents independently from the Office of Law Guardian. N.J.S.A.

30:4C-15.4(c)(1)-(3). Decisions by the Public Defender concerning 

the representation of parents are to be made by staff who have no 

actual involvement in the day-to-day representation of children 

provided by the OLG. N.J.S.A. 30:4C-15.4(c)(3). 

The Post-2004 Reforms 

From 1974 to the mid-2000s, the general practice in Title

Nine proceedings was for the Public Defender to assign an attorney 

in the OLG to represent the child, and to assign separate pool 

attorneys to represent the parents. N.J. Div. of Youth & Family

Servs. v. E.B., 264 N.J. Super. 1, 6 (App. Div. 1993), aff'd, 137 

N.J. 180 (1994).5 That practice changed, however, in 2004, when, 

 

5 Prior to an amendment in 1977, N.J.S.A. 9:6-8.21 defined an 

"attorney" for an indigent parent as "a pool attorney" from the 

Public Defender "appointed in order to avoid conflict between the 

interests of the child and the parent[.]" L. 1974, c. 119. 

N.J.S.A. 9:6-8.21 currently defines an "attorney" for an indigent 

parent as "an attorney from the Office of the Public Defender or

an attorney appointed by the court who shall be appointed in order 

to avoid conflict between the interests of the child and the parent 

or guardian in regard to representation." (Emphasis added).
A-5222-15T2

25

as part of the State's comprehensive reform of the child welfare 

system, the Public Defender transitioned from a model primarily 

utilizing pool attorneys, which had received criticism, to a model 

utilizing staff attorneys more often. 

The State's reform plan was developed as part of a settlement 

reached in a federal class action filed on behalf of children in 

the Division's care.6 Among other things, the plan was designed 

to improve legal representation of indigent parents. The reform 

plan provided in relevant part that:

Children are represented by the Law Guardian 

Unit of the . . . [Public Defender], which has 

a large in-house staff. Parents are also 

represented by the [Public Defender], which 

has a small in-house staff for this purpose 

(the parental representation unit, PRU, which 

mainly handles appeals, with almost all the 

trial level representation being handled by 

pool private sector attorneys paid on an 

hourly basis for this work.) This model 

raises several concerns. 

[A New Beginning: The Future of Child Welfare 

in New Jersey, at 146 (June 9, 2004),

available at 

http://dspace.njstatelib.org:8080

/xmlui/handle/10929/25777 (emphasis added).]

The reform plan went on to detail those concerns, including the 

following criticisms of heavy reliance on pool attorneys:

[B]ecause most of the parental representation 

is not institutionalized, but handled by the 

individual pool attorneys, most parents are 

 

6 See Charlie H. v. Whitman, 83 F. Supp. 2d 476 (D.N.J. 2000)

(addressing a motion to dismiss filed in the federal class action).
A-5222-15T2

26

represented by counsel without reliable access 

to ongoing training, support (from paralegals, 

investigators, or the like) or supervision, 

which cannot but affect the quality of 

parental representation. Parents are often 

represented by different attorneys during the 

course of their cases, undermining both the 

quality of representation and the parents' 

confidence in the operation of the system as 

a whole, at a time of particular legal and 

emotional vulnerability.

[Ibid. (emphasis added).]

In accordance with the reform plan, the Child Welfare Panel 

engaged as consultants Professor Martin Guggenheim of New York 

University School of Law, and Craig Levine, Senior Counsel for the 

New Jersey Institute for Social Justice. These consultants 

asserted in their report that the pool attorney system had 

contributed to the inadequate representation of indigent parents 

because the pool attorneys were often unprepared, undertrained, 

underpaid, and improperly managed. Martin Guggenheim & Craig 

Levine, Report to New Jersey Child Welfare Panel on the 

Representation of Parents in Child Welfare Cases (May 2005) at 7-

9.7 They recommended that to the extent pool attorneys would

continue to be used in conflict cases with multiple parents, it 

was important to implement a meaningful evaluative tool for their 

 

7 Available at https://dspace.njstatelib.org/xmlui/bitstream/

handle/10929/40775/c5362005g.pdf?sequence=1&isAllowed=y (last 

viewed on November 16, 2016). 
A-5222-15T2

27

performance. Id. at 35. Further, they recommended that 

representation be housed in separate institutions – one for socalled "primary" and another for so-called "secondary" parents –

which might decrease the need for retaining pool attorneys. Id.

at 26-27, 35. 

In a public report submitted in June 2005, the Interagency 

Council for Children and Families (the "ICCF"), the agency charged 

with ensuring the timely implementation of the reform plan, 

described the aim of the Public Defender's transformation to a 

predominantly staff-based system for the representation of 

indigent parents. According to the ICCF, the transformation was 

designed "both to increase the quality and accountability of legal 

counsel and to ensure the presence of legal counsel for parents 

from the earliest possible opportunity in a child welfare 

proceeding." Interagency Council for Children & Families, Public 

Report, at 3 (June 30, 2005).8 To that end, the OPR hired 

additional staff attorneys, opened new offices, and hired new 

investigators. Id. at 3-4. In addition, the OPR "continue[d] to 

maintain a list of seasoned pool attorneys for cases with multiple 

defendant parents and [to] manage such trial assignments to ensure 

timely selection of legal counsel for those cases[.]" Id. at 5. 

 

8 Available at https://dspace.njstatelib.org/xmlui/

handle/10929/30082 (last viewed on November 16, 2016).
A-5222-15T2

28

This transition from a predominantly pool attorney model to 

a predominantly staff attorney model took longer than expected. 

According to the OPR, the transition was not fully implemented on 

a state-wide basis until September 2013.

Conflicts Protocols

Under the former system that had been in effect from 1974 to 

2013, few issues of conflict-of-interest would have arisen,

because parents were then mainly represented by pool attorneys 

from separate firms and children were represented by the OLG, an 

entirely separate office within the Public Defender.

9 "OLG and 

OPR are kept administratively separate to avoid any appearance of 

conflict [between counsel for children and their parents] in these 

cases." Office of the Public Defender, supra, History. 

The OPR recognized that under the revised system, a potential 

for conflict could arise from the fact that staff attorneys from 

the same OPR office can be assigned to represent co-defendant 

parents. According to the Guggenheim report, approximately onethird of the OPR's cases involve multiple parents and require the 

 

9 Separate law guardians are also appointed if there is a conflict 

of interest among the children. See, e.g., N.J. Div. of Youth & 

Family Servs. v. Robert M., 347 N.J. Super. 44, 61-62, 69 (App. 

Div.) (appointing four separate law guardians to children in a 

termination case), certif. denied, 174 N.J. 39 (2002). Although 

there are parallel issues of how best to deal with client conflicts 

with respect to the Law Guardian, those issues are not posed in 

this appeal, and we therefore do not address them.
A-5222-15T2

29

assignment of a second attorney. Guggenheim & Levine, supra, at 

26-27. To address that concern, the OPR chose not to adopt the 

"primary"/"secondary" client model suggested by Guggenheim and 

Levine, but instead established protocols for staff attorneys, to 

insure confidentiality and to protect independent advocacy when 

they are representing parents in child welfare cases. If, however, 

a determination is made that there is a potential conflict of 

interest and a significant likelihood of prejudice, representation 

is assigned to a pool attorney.

The record does not contain any written guidelines issued 

internally by the OPR detailing the protocols for representation 

by staff attorneys within the same office representing two parents 

in the same case. However, the record does contain a certification 

from the managing attorney of OPR-Central describing those 

existing protocols. The managing attorney explained that 

beginning in 2013, the OPR instituted a state-wide program of 

staff attorney representation of co-defendants in civil child 

welfare matters. A "critical component" of the program was to 

insure that staff attorneys considered potential conflicts.

According to the managing attorney's certification, "[s]taff 

attorneys were instructed to review each case at the onset and 

determine if the circumstances demonstrated a potential conflict 

of interest and a significant likelihood of prejudice to either 
A-5222-15T2

30

or both defendants." If the staff attorney found a potential 

conflict, the attorney was directed to immediately bring the case 

to the managing attorney's attention for further assessment. Cases 

in which a final determination was made "that a potential for 

conflict exists that could result in a significant likelihood of 

prejudice" were immediately reassigned to a pool attorney – a 

result OPR-Central has had to use in only a "few" cases.

The managing attorney further attested that, before the 

present case was filed by the Division, the following protocols 

within the OPR had been "continuously implemented to insure 

confidentiality and to preserve independent advocacy":

• Each staff attorney representing a codefendant on the same case has a separate and 

distinct office and individual filing cabinets 

to store case files.

• Each staff attorney representing a codefendant on the same case has a separate 

secretary assigned and/or must undertake 

his/her own administrative tasks.

• Each staff attorney representing a codefendant on the same case is assigned to a 

separate printer located in different rooms 

within the office.

• All staff and secretaries are precluded from 

using the speaker phone function when speaking 

with clients.

• All staff attorneys are precluded from 

removing documents from the copier or fax, and 

must wait for documents to be placed in 

his/her mailbox by support personnel or the 

manager.
A-5222-15T2

31

• All staff attorneys have been directed to 

keep all files secured in cabinets and any 

work product out of plain view.

• All staff attorneys have been instructed to 

maintain confidentiality and independent 

advocacy by insuring conversations with 

colleagues regarding shared cases are limited 

to general information and only to that which 

is not protected by attorney client privilege.

The OPR-Central managing attorney further explained in her 

certification that she sometimes has conferences with individual 

staff and pool attorneys about litigation issues and strategies. 

She asserted that her advice and recommendations to the attorneys 

are kept confidential, and that no information she learns about 

the position or strategy of a co-defendant is shared. "In 

instances where staff attorneys, with the consent of their 

respective clients, wish to discuss a collaborative case strategy 

or shared legal question," the managing attorney "meet[s] with 

both attorneys together to discuss the legal considerations 

related to their collaborative strategy or shared question." 

According to the managing attorney, even when such collaborative 

approaches are pursued, "each attorney is expected to and does 

independently advocate for his/her client" in the case.

During the motion proceedings before the trial court in this 

case, the OPR appellate attorney further clarified these customary 

practices in his representations to the court. He acknowledged 
A-5222-15T2

32

that the OPR does not ordinarily assign staff attorneys from other 

OPR offices to represent co-defendant parents in a case because 

it does not have offices in every county. Because of logistical 

impediments, it is difficult to assign counsel to such codefendants from different regional offices. Instead, the OPR 

generally utilizes two staff attorneys from the same office, with 

the screening protocol described in OPR-Central's managing 

attorney's certification. The OPR's appellate attorney 

acknowledged to the trial court that there was no "standard script" 

for staff attorneys to explain to clients the risks of such 

representation arrangements out of a common office.

III.

Mindful of this important history and background information, 

we now address the issues raised on appeal. In essence, the issues 

fall into three clusters: (1) the identification of actual or 

potential conflicts arising from OPR staff attorneys within the 

same office representing co-defendant parents; (2) whether such 

conflicts may be waived, and, if so, how; and (3) the appropriate 

role of the court. We examine them in turn.

A.

The Identification of Conflicts

The OPR, Law Guardian, and amicus in this case all agree with 

the fundamental principle that it is vital to safeguard against 
A-5222-15T2

33

conflicts of interest that might compromise the integrity or 

quality of representation of indigent parents in defending Title

Nine and Title Thirty actions. Their arguments differ over what 

precisely comprises such conflicts of interest, and over when 

specifically measures must be taken to address actual or potential 

conflicts. 

Fundamentally, a lawyer owes his or her client the key 

responsibilities of confidentiality and loyalty. In re Op. No. 

653 of the Advisory Comm. on Prof'l Ethics, 132 N.J. 124, 129 

(1993). From that duty "issues the prohibition against 

representing clients with conflicting interests." Ibid. "The 

prohibition against lawyer conflicts of interest is intended to 

assure clients that a lawyer's work will be characterized by 

loyalty, vigor, and confidentiality." Restatement (Third) of the 

Law Governing Lawyers § 122 comment b (2000). The risk in 

representing clients with conflicting interests is that a lawyer's 

divided loyalty will result in less vigorous representation of 

both clients, and that the lawyer will use confidences of one 

client to benefit the other. A. v. B., 158 N.J. 51, 57 (1999). 

The Rules of Professional Conduct, which address conflicts 

of interest, are indisputably applicable to lawyers assigned by 

the Office of Public Defender in either a civil or criminal 

context. N.J.S.A. 2A:158A-13; Bell, supra, 90 N.J. at 169; State 
A-5222-15T2

34

v. Noel, 386 N.J. Super. 292, 297 (Law Div. 2005). Specifically 

at issue here is RPC 1.7(a), a provision "rooted in the concept 

that '[n]o man can serve two masters[.]'" State ex rel. S.G., 175 

N.J. 132, 139 (2003) (quoting Raymond L. Wise, Legal Ethics 272-

73 (1970)). RPC 1.7(a) prescribes: 

[A] lawyer shall not represent a client if the 

representation involves a concurrent conflict 

of interest. A concurrent conflict of 

interest exists if:

(1) the representation of one client will be 

directly adverse to another client; or

(2) there is a significant risk that the 

representation of one or more clients will be 

materially limited by the lawyer's 

responsibilities to another client, a former 

client, or a third person or by a personal 

interest of the lawyer.[10]

Hence, pursuant to RPC 1.7(a)(1), one lawyer cannot represent 

multiple clients with "directly" conflicting interests or

interests that "materially limit" the lawyer's advocacy. A

 

10 Our Supreme Court largely adopted, with certain modifications, 

the ABA Model Rules of Professional Conduct in 1984 "'to harmonize 

New Jersey's standards with the Model Rules and to provide clear, 

enforceable standards of behavior for lawyers.'" In re Op. No. 

17-2012 of the Advisory Comm. on Prof'l Ethics, 220 N.J. 468, 478 

(2014) (quoting State v. Rue, 175 N.J. 1, 14 (2002)). Restatement 

(Third) of the Law Governing Lawyers, supra, § 121, defines a 

conflict of interest as arising "if there is a substantial risk 

that the lawyer's representation of the client would be materially 

and adversely affected by the lawyer's own interests or by the 

lawyer's duties to another current client, a former client, or a 

third person." See In re Simon, 206 N.J. 306, 316 n.5 (2011) 

(citing § 121 of the Restatement).
A-5222-15T2

35

conflict of interest may thereby preclude a lawyer from 

representing co-defendants. 

Under RPC 1.10, such a conflict is "imputed to all members 

of a law firm, disqualifying all if any one would be disqualified." 

S.G., supra, 175 N.J. at 138. However, in New Jersey, public 

defenders are not viewed for imputation purposes in exactly the 

same manner as a law firm of attorneys. See Michels, N.J. Attorney 

Ethics § 24:2-2 at 600 (2015); Bell, supra, 90 N.J. at 171; State 

v. Muniz, 260 N.J. Super. 309, 314-15 (App. Div. 1992). 

For the reasons we shall discuss, infra, the comparison with 

private law firms is not perfect. Our courts have addressed these 

conflict-of-interest concerns in the somewhat analogous context 

of the representation of co-defendants in a criminal case. 

For instance, in Bellucci, supra, 81 N.J. at 545, the Supreme 

Court held that representation of multiple defendants in a criminal 

case by a single private attorney or attorneys from the same law 

firm is barred and implicates the defendants' Sixth Amendment 

rights to the effective assistance of counsel "unless defendants 

are fully advised of the potential problems involved." "[O]nce a 

potential conflict exists, prejudice will be presumed in the 

absence of waiver . . . even if associated attorneys are involved 

instead of the same attorney." Id. at 543 (citing State v. Land, 

73 N.J. 24, 30 (1977)). As the Court explained in Bellucci, 
A-5222-15T2

36

prejudice is presumed when lawyers from the same law firm represent 

criminal co-defendants because: (1) firm members have access to 

confidential information; (2) the entire firm shares an economic 

interest in the clients of each attorney; and (3) public confidence 

in the integrity of the Bar would be eroded if conduct proscribed 

by one lawyer could be performed by another lawyer in the firm. 

Bellucci, supra, 81 N.J. at 541-42. 

Multiple representation of defendants in criminal cases by 

public defenders from the same office does not, however, "in itself 

give rise to a presumption of prejudice," because the same degree 

of conflict risks pertaining to private law firms does not exist. 

Bell, supra, 90 N.J. at 171. The Court in Bell explained that the 

Public Defender differs from private law firms because public 

defenders have no financial incentive in retaining clients, and 

[a]s a consequence, the public does not lose 

confidence in a rule allowing attorneys in the 

same office to represent joint defendants, 

even though a single attorney from that office 

could not handle the cases. Because "the 

primary, if not the only, responsibility of 

an assistant public defender is to represent 

individual citizens in controversy with the 

State," Branti v. Finkel, 445 U.S. 507, 519, 

100 S. Ct. 1287, 1295, 63 L. Ed. 2d 574, 584 

(1980), we can expect the public defenders to 

withdraw from the case whenever joint 

representation may prejudice their clients. A 

per se rule requiring counsel from separate 

offices would therefore needlessly deprive 

many defendants of competent local public 

defenders.
A-5222-15T2

37

[Id. at 168-69 (emphasis added).]

The Court in Bell was "satisfied that although the subtle 

influences that arise from public defenders practicing side by 

side in the same office may present difficulties in maintaining 

absolute independence, 'the inbred adversary tendencies of [public 

defense] lawyers are sufficient protection.'" Id. at 169 (quoting 

People v. Robinson, 402 N.E.2d 157, 162 (Ill. 1979) (quoting ABA 

Standards, The Defense Function, at 212-13 (1971))).

11

For similar reasons, we conclude that there is no per se 

ethical prohibition upon staff attorneys from within the same OPR 

regional office representing different parents within the same 

case, provided that appropriate screening measures are 

scrupulously implemented. There is no need for us in these appeals 

to pass upon, item-by-item, the protective measures described in 

the certification of OPR-Central's managing attorney. We observe 

 

11 See State v. Reardon, 337 N.J. Super. 324, 330 (App. Div. 2001) 

(conflict of interest based on multiple representation by 

attorneys from same Public Defender's Office was not supported by 

record); State v. Scherzer, 301 N.J. Super. 363, 459-60 (App. 

Div.) (finding no per se conflict in co-defendants represented by 

public defenders), certif. denied, 151 N.J. 466 (1997); Muniz, 

supra, 260 N.J. Super. at 314-15 (holding public defender not 

disqualified from representing a defendant whose victim had been 

represented by another public defender in the same office on 

unrelated matter); State v. Rogers, 177 N.J. Super. 365, 367 (App. 

Div. 1981) (holding joint representation of co-defendants by 

public defenders from same office did not constitute denial of 

defendants' constitutional rights to counsel), appeal dismissed, 

90 N.J. 187 (1982).
A-5222-15T2

38

that they appear to be appropriately designed to safeguard client 

confidences, on the whole, and to promote zealous independent 

representation by the respective staff lawyers for each parent.

We do add two important points of enhancement. First, the 

described protocol should be expanded to include measures to 

safeguard electronically stored confidential client information 

and attorney work product, in a manner conforming with the 

recently-enacted subsection (f) to RPC 1.6 (eff. September 1, 

2016) and the associated Official Comment issued on August 1, 

2016. In this digital information age, it is vital that screening 

measures not be confined to physical case files. The screening 

must include the protection of electronically stored data, which, 

for example, might contain confidential attorney notes on client 

confidences and strategies.12 

Second, we instruct the OPR to formalize its protocol with 

written guidelines that are distributed to all staff and managing 

attorneys, assuming they do not already exist. The OPR's appellate 

attorney represented that the procedures described in the 

certification of OPR-Central's managing attorney are followed in 

all of the OPR's other regional offices statewide. In any event, 

 

12 At oral argument, we were assured by the OPR's appellate attorney 

that the OPR maintains separate log-in passwords for individual 

attorneys so that access to sensitive computer files is limited. 

Beyond this, we recommend that the OPR consider what additional 

measures are warranted in light of the new RPC subsection.
A-5222-15T2

39

they ought to be promulgated internally in a more formal manner 

to assure compliance.

The harder questions presented here concern identifying under 

what circumstances the mere theoretical possibility for conflict 

advance to a tangible, case-specific concern that warrants 

scrutiny and potential corrective action. This potential was 

explained by the Court in a criminal context in Bell, supra, 90 

N.J. at 171-73. In that case, the Court found no conflict where, 

near the end of the trial, a detective testified, without prior 

disclosure, that several hours before the burglary he had seen one 

of the co-defendants carrying a pair of pink pants; the pants were 

later found with the stolen items. Id. at 171-72. The trial 

judge overruled defense counsels' objection on the basis of 

surprise. Id. at 172. 

Defense counsel in Bell did not raise the conflict issue 

until after cross-examination of the detective had been completed. 

Ibid. The conflict claim was based on the fact that co-defendant 

Bell alone, without co-defendant Peguese, was seen carrying the 

pants. Ibid. "No further explanation was given as to how a 

conflict had developed from this alleged dissimilarity." Ibid. 

The Court held:

We fail to see the conflict. The 

confidentiality of the information was not at 

issue. The attorney defending Peguese was 

unfettered in his ability to respond to this 
A-5222-15T2

40

new information. Bell could hardly seek to 

claim a tactical trial problem related to his 

co-defendant. Its real burden lay not in any 

conflict but in its surprise. As noted, the 

trial court permitted an adjournment to allow 

counsel to check out the incident but denied 

a mistrial because the nondisclosure was 

inadvertent. Two privately retained lawyers 

would have faced the same problems of trial 

tactics at that time. 

 At no time, either at trial or on appeal,

have defendants suggested what either trial 

attorney might have done differently once the 

conflict arose. Neither defendant took the 

stand. Peguese's attorney stated that this 

was his usual trial strategy. Contrast this 

with Holloway v. Arkansas, 435 U.S. 475, 98 

S. Ct. 1173, 55 L. Ed. 2d 426 (1978), where a 

trial court had ordered one public defender 

to represent three criminal defendants. He 

could cross-examine none although their 

interests differed. Cf. Glasser v. United 

States, 315 U.S. 60, 62 S. Ct. 457, 86 L. Ed.

680 (1942) (attorney representing two 

defendants voluntarily refrained from crossexamining prosecution witness because of 

feared adverse effect on one co-defendant).

[Bell, supra, 90 N.J. at 172-73 (emphasis 

added).]

 

Thereafter, in a civil case, In re Petition for Review of 

Opinion 552 of Advisory Committee on Professional Ethics, 102 N.J.

194 (1986), the Court held that in a Section 1983 civil rights 

action, "a government attorney is precluded from representing codefendant government officers or employees only where the 

allegations or the facts as developed present an actual conflict 

of interests or the realistic possibility of such a conflict." 
A-5222-15T2

41

Id. at 208 (emphasis added). "If no such conflict is presented, 

then a government attorney may simultaneously represent as codefendants governmental officers or employees and the government 

entity." Ibid. The Court cautioned, however, that "[t]his joint 

representation . . . is conditioned upon the continuing obligation 

of the attorney to ascertain whether there exist potential 

conflicts of interests among the defendants, and if, under the 

circumstances, such potential conflicting interests emerge that 

outweigh the mutuality or similarity of the interests among 

defendants." Id. at 208-09 (emphasis added). If that 

materializes, "the attorney shall be obligated promptly to 

terminate such joint representation and initiate steps for the 

separate representation of the defendants." Id. at 209.

The Court explained in Opinion 552 that joint representation 

of co-defendants "with potentially differing interests is 

permissible provided there is a substantial identity of interests 

between them in terms of defending the claims that have been 

brought against all defendants. The elements of mutuality must 

preponderate over the elements of incompatibility." Id. at 204. 

Critical to that determination is whether co-defendants "would 

present consistent defenses to the claims brought against them." 

Id. at 205. Thus, "representation of multiple parties may be 

permitted even if the positions may appear to be somewhat 
A-5222-15T2

42

potentially conflicting." Ibid. 

Moreover, under the RPCs, representation of clients who are 

on the same side in the same civil litigation, unlike opposing 

clients with a direct conflict of interest, does not always present 

a potential for a conflict of interest, and is not automatically 

barred. Michels, supra, § 19:2-1(e) at 415. A disqualifying 

conflict may arise in representing co-defendants "by reason of 

substantial discrepancy in the parties' testimony, incompatibility 

in positions in relation to an opposing party or the fact that 

there are substantially different possibilities of settlement of 

the claims or liabilities in question." Ibid. (quoting ABA Model 

Rules of Prof'l Conduct R. 1.7 (2000)). See, e.g., Wolpaw v. Gen. 

Acc. Ins. Co., 272 N.J. Super. 41, 45 (App. Div.) (requiring a 

liability insurer to retain separate counsel for co-defendants 

with conflicting interests), certif. denied, 137 N.J. 316 (1994). 

In identifying conflicts, "[t]he critical questions are the 

likelihood that a difference in interests will eventuate and, if 

it does, whether it will materially interfere with the lawyer's 

independent professional judgment in considering alternatives or 

foreclose courses of action that reasonably should be pursued on 

behalf of the client." ABA Model Rules of Prof'l Conduct, supra, 

R. 1.7 comment 8. 

These principles came into play in a Title Thirty case 
A-5222-15T2

43

involving private representation in which a defendant father 

appealed from an order terminating his parental rights. N.J. Div.

of Youth & Family Servs. v. V.K., 236 N.J. Super. 243, 249 (App. 

Div. 1989), certif. denied, 121 N.J. 614, cert. denied, 495 U.S.

934, 110 S. Ct. 2178, 109 L. Ed. 2d 507 (1990). The Division 

became aware of the case when the mother called a hotline because 

she felt "overwhelmed" with the care of her small children. Id.

at 250. The parents had "a history of emotional instability and 

inability to control their behavior," and "would not agree to 

voluntary placement of the children." Ibid. The trial court 

heard "extensive testimony of physical and sexual abuse of the two 

children" by the co-defendant parents in the termination case. 

Ibid. The parents were also tried on criminal charges of child 

abuse and were acquitted. Id. at 251. 

On appeal in V.K., the father argued, among other things, 

that private trial counsel should not have represented both him 

and his wife "as such representation constituted a conflict of 

interest." Id. at 256-57. He claimed that there was "'no question 

but that all of the family problems have their root'" in his wife's 

alleged conduct, and that the conflict was further heightened by 

the fact that he wanted the children back, while unbeknownst to 

him, his wife did not. Id. at 257. The Division's attorney had 

raised a possible conflict of interest concerning the co-
A-5222-15T2

44

defendants' private counsel representing the husband in the 

related criminal matter, but the husband and wife stated at the 

time that they did not believe there was a conflict of interest 

and wanted common trial counsel to represent them in the civil 

termination trial. Ibid. 

We found no support in the record for the father's allegations

of a conflict in V.K. Without citing to Bell or RPC 1.7, we held

that "[o]ur careful review of the record reveals no conflict of 

interests between appellant and his wife that would result in 

prejudice to appellant. Their interests were not divergent; both 

sought to establish that [the Division's] claim that they had 

sexually abused their children was groundless." Ibid. (citing 

United States ex rel. Smith v. New Jersey, 341 F. Supp. 268, 271 

(D.N.J. 1972) (where, by comparison, the co-defendants' interests 

were identical)).

More recently, in New Jersey Division of Youth & Family 

Services v. N.S., 412 N.J. Super. 593, 639-40 (App. Div. 2010), 

we held that there was no per se "disqualifying conflict" when 

"one attorney assumes the tandem roles of counsel for the same 

defendant in both a Title Nine action and criminal proceedings 

arising from the abuse or neglect of a child." The concern in 

allowing dual representation in that case centered on the release 

of the Division's files under Rule 5:12-3. Ibid. We held that 
A-5222-15T2

45

such dual representation by counsel may be allowed "subject to a 

protective order, which preserves the confidentiality of the 

source prompting the Division's protective services litigation." 

Id. at 640.

These cases signify that a conflict of interest that warrants 

attention in this multiple representation context is one that goes 

beyond the mere fact that the clients have the status of codefendants in the same Title Nine or Title Thirty case. The 

trigger for concern is instead whether there is a manifest 

particularized divergence between the clients' factual contentions 

or legal assertions,13 or the remedies they wish their counsel to 

advocate. The latter concern implicates the standard of RPC 1.7, 

i.e., whether the circumstances show "direct" adversity between 

the clients, see RPC 1.7(a)(1), or, alternatively, whether there 

is a "significant risk" that the representation of one client will 

"materially limit" the advocacy of the other client represented 

by a staff attorney in the same OPR office. See RPC 1.7(a)(2).

 

13 We refrain from using in this context the term "positional 

conflict" that is used in some of the briefs on appeal. The use 

of that term here is misplaced. A "positional conflict" occurs 

when a lawyer takes inconsistent legal positions in different 

tribunals at different times on behalf of different clients. See

ABA Model Rules of Prof'l Conduct R. 1.7 comment 24 (2000); John 

S. Dzienkowski, Positional Conflicts of Interest, 71 Tex. L. Rev.

457, 460 (1993).
A-5222-15T2

46

The American Bar Association has provided some guidance on 

this subject with specific reference to the representation of 

multiple parents in abuse and neglect cases by a single attorney. 

In particular, Standard 14 of the American Bar Association 

Standards of Practice for Attorneys Representing Parents in Abuse 

& Neglect Cases (2006) cautions that counsel should "[b]e alert 

to and avoid potential conflicts of interest that would interfere 

with the competent representation of the client." (Emphasis 

added). By illustration, ABA Standard 14 states: 

Action: The parent's attorney must not 

represent both parents if their interests 

differ. The attorney should generally avoid 

representing both parents when there is even 

a potential for conflicts of interests. In 

situations involving allegations of domestic 

violence the [same] attorney should never 

represent both parents.

Commentary: In most cases, attorneys should 

avoid representing both parents in an abuse 

or neglect case. In the rare case in which 

an attorney, after careful consideration of 

potential conflicts, may represent both 

parents, it should only be with their informed 

consent. Even in cases in which there is no 

apparent conflict at the beginning of the 

case, conflicts may arise as the case 

proceeds. If this occurs, the attorney might 

be required to withdraw from representing one 

or both parents. This could be difficult for 

the clients and delay the case. Other 

examples of potential conflicts of interest 

that the attorney should avoid include 

representing multiple fathers in the same case 

or representing parties in a separate case who 

have interests in the current case.
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47

In analyzing whether a conflict of interest 

exists, the attorney must consider "whether 

pursuing one client's objectives will prevent

the lawyer from pursuing another client’s 

objectives, and whether confidentiality may be 

compromised."

[Ibid. (emphasis added) (citations omitted).]

The ABA Standard does not, however, address whether such conflict 

problems are ameliorated when different staff attorneys within the 

same public defender's office separately represent the codefendant parents.

Another ABA publication has recommended that, when assigning 

counsel to defend parents in child welfare claims, attorneys should 

ascertain whether the parents have claims or contentions against 

each other, particularly domestic violence claims. If so, then 

the following questions may bear on the conflict analysis:

• Does representing one client foreclose 

alternatives for the other?

• Will confidential information from Client 

A be compromised in representing Client B?

• Can the lawyer comply with the duties owed 

to each client, including the duty to pursue 

each client's position?

• Will the client reasonably fear that the 

lawyer will pursue that client's case less 

effectively out of deference to the other 

client?

• Can the lawyer ask for consent?

[Jennifer L. Renne, Legal Ethics in Child 

Welfare Cases 49 (Amer. Bar Ass'n. 2004).]
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48

Although we do not necessarily adopt these five questions as 

comprehensive or dispositive, they do appear to be useful points 

of inquiry.

The Law Guardian rightly stresses in its arguments that the 

conflicts analysis in this child welfare context must be dynamic 

rather than static. As the Title Nine or Title Thirty litigation 

progresses, the contentions and positions of the parents can often 

diverge significantly, even if at the outset of the case they had 

been allied in asserting that no abuse or neglect occurred and 

that their children should be reunified with them. As time passes, 

the capacity of each individual parent to be a fit caretaker may 

improve or deteriorate, due to a multitude of factors such as 

physical or mental health, substance abuse or treatment, 

employment, housing, incarceration, domestic violence, parenting

classes, social services, and so forth. Likewise, the needs of 

the children may evolve, and their relationships with each parent 

may grow or dwindle. The Division's factual contentions may focus 

more on one parent than another as the case progresses, with 

shifting degrees of culpability for past harm inflicted upon the 

children. Expert opinions about each parent may also diverge. 

For these many reasons, an initial assessment at the outset 

of a case that there is no apparent conflict between the parents 
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49

may become invalid with the passage of time. Hence, it is vital 

that the conflicts analysis be updated when such changes occur.

To summarize, we conclude that there is no per se prohibition 

upon, or any presumptive disallowance of, different staff 

attorneys within the same OPR field office separately representing 

co-defendant parents in Title Nine and Title Thirty cases. 

Nevertheless, greater scrutiny of the potential for conflict is 

required when the parents' factual contentions, legal positions, 

or remedial preferences materially diverge. The propriety of 

continued dual representation of both clients out of the same OPR 

office must be reexamined when such divergence materializes. In 

particular, in accordance with RPC 1.7, the analysis must focus 

on whether the clients are now "directly" adverse to one another, 

or whether their respective staff attorneys are "materially 

limited" by the circumstances in being able to zealously advocate 

their interests. 

With respect to whether disqualification of one or both staff 

attorneys is required, the OPR appellate attorney urges that we 

apply in this child welfare context the language of Bell, focusing 

on whether there is a "significant likelihood of prejudice" to the 

clients created by the potential conflict-of-interest. Bell, 

supra, 90 N.J. at 171. That standard for disqualification may 

well be sensibly extended from Bell, subject to the broader 
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50

examination of this general issue by the Court itself or a 

designated rule-making committee. 

However, for the reasons we explain more fully in Part III(C), 

infra, we disagree with appellants' counsel that a trial court has 

no role in inquiring into potential conflicts before that threshold 

of "substantial likelihood of prejudice" is attained. We also do 

not agree with appellants that the trial judge in this particular 

case acted prematurely and precipitously in reacting to the 

conflict potential once the co-defendant parents had advocated 

competing parenting plans. To the contrary, we agree with the Law 

Guardian and the amicus that the conflicts concerns may be an 

appropriate subject of judicial inquiry even before "a substantial 

likelihood of prejudice" materializes.

B.

Client Consultation and Potential Waiver of Conflicts

Having attempted to define what may constitute a 

disqualifying conflict in this Title Nine and Title Thirty setting, 

we turn our attention to the related important subject of client 

consultation and potential waiver. Here again, the test of the 

governing ethical rules is instructive.

RPC 1.7(b) provides that:

Notwithstanding the existence of a concurrent 

conflict of interest under paragraph (a), a 

lawyer may represent a client if:
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51

(1) each affected client gives informed 

consent, confirmed in writing, after full 

disclosure and consultation, provided, 

however, that a public entity cannot consent 

to any such representation. When the lawyer 

represents multiple clients in a single 

matter, the consultation shall include an 

explanation of the common representation and 

the advantages and risks involved;

(2) the lawyer reasonably believes that the 

lawyer will be able to provide competent and 

diligent representation to each affected 

client;

(3) the representation is not prohibited by 

law; and

(4) the representation does not involve the 

assertion of a claim by one client against 

another client represented by the lawyer in 

the same litigation or other proceeding before 

a tribunal.

[RPC 1.7(b) (emphasis added).]

Multiple representation of the co-defendants by OPR staff 

attorneys in the present case does not fall under any of the 

categorical exceptions to client waiver specified in RPC

1.7(b)(2),(3),(4). Defendants' trial attorneys have each 

certified that they are prepared to continue to provide their 

respective clients with diligent representation. RPC 1.7(b)(2). 

Representation of multiple defendants in a Title Nine case is not 

prohibited by law, RPC 1.7(b)(3), nor have the co-defendants in 

this case asserted claims against each other in this litigation. 

RPC 1.7(b)(4). See Michels, supra, § 26:4-1 at 635 ("a lawyer may 
A-5222-15T2

52

not simultaneously represent adversaries in a litigation matter, 

even with the consent of both parties"). 

Nor does this matter entail the type of conflict of interest 

that our Court has otherwise recognized as "so egregious" that it 

"cannot be cured by consent." In re Garber, 95 N.J. 597, 613-14 

(1984). The trial judge in this very case recognized that "it is 

highly unlikely in abuse and neglect cases an attorney could be 

involved in a conflict so serious in nature that it could not be 

waived."

By comparison, joint representation of co-defendants in a 

criminal case can be subject to waiver of conflicts in appropriate 

circumstances. See Cottle, supra, 194 N.J. at 473; Bellucci, 

supra, 81 N.J. at 544-45. See also Gary T. Lowenthal, Joint 

Representation in Criminal Cases: A Critical Appraisal, 64 Va. L.

Rev. 939, 956 (1978). That said, if a court finds an actual 

conflict of interest in a criminal case, "there can be no doubt 

that it may decline a proffer of waiver, and insist that defendants 

be separately represented." Wheat v. United States, 486 U.S. 153, 

162, 108 S. Ct. 1692, 1698, 100 L. Ed. 2d 140, 150 (1988). That 

residual judicial authority to disqualify counsel exists here, as 

well. See, infra, at Part III(C), concerning the court's role.

As the professional ethics rules and related authorities have 

instructed, in order for client consent to a waiver of attorney 
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53

conflict to be effective, it must be informed and based on "full 

disclosure and consultation." RPC 1.7(b)(1). The consent can be 

reviewed by the trial court for fairness, reliability, and 

compliance with the Rules of Professional Conduct. State v. Loyal, 

164 N.J. 418, 440 (2000) (in which the Court disregarded a client's 

consent to a conflict in a criminal case, based on the need to 

maintain public confidence in the judicial system); In re Dolan, 

76 N.J. 1, 13 (1978) (reaffirming that a client's consent must be 

knowing, intelligent, and voluntary). 

"Sophistication" of the client is also a factor to be 

considered in determining whether his or her consent was adequate. 

Advisory Comm. on Prof'l Ethics Op. 679 (July 17, 1995). See

Marshall J. Berger, Disqualification for Conflicts of Interest and 

the Legal Aid Attorney, 62 B.U. L. Rev. 1115, 1130 (1982) 

(observing that legal aid clients traditionally lack experience 

in legal matters). This is of particular concern in the present 

context of the representation of indigent parents in Title Nine 

and Title Thirty matters. At times, such indigent parents have 

limited education, mental health issues, cognitive limitations, 

and other personal problems that can make it difficult for them 

to fully appreciate the concepts of an attorney's conflict-ofinterest and the respective advantages and disadvantages of 

changing counsel. 
A-5222-15T2

54

The logistics for attorneys obtaining client waivers in 

business litigation or other civil matters can be more feasible 

than those confronting lawyers who represent indigent parents. 

Such parents at times may be harder to locate, meet with, and 

counsel than other clientele.

Another impediment to waiver in Title Nine and Title Thirty 

cases is the possibility – which can also arise in the context of 

indigent criminal defendants – that a defendant parent may refuse 

to waive a conflict in a deliberate, bad faith effort to stall the 

case by forcing the substitution of pool counsel or a staff 

attorney from a different OPR office. A transition to such 

substituted counsel will consume time, as the new attorney will 

need to review the case from scratch and prepare for future 

proceedings. This prospect of delay is particularly worrisome in 

light of the strong policies that favor achieving permanency of 

outcomes for children who remain in limbo while Title Nine and 

Title Thirty cases are litigated. N.J. Div. of Youth & Family 

Servs. v. K.M., 136 N.J. 546, 558 (1994). 

Consequently, the OPR and the courts have an important role 

in not allowing clients to withhold conflict waivers in bad faith 

as a stalling maneuver. In extreme instances where such bad faith 

exists, the client's demand for a new attorney may be rejected, 

despite his or her expressed dissatisfaction. Of course, if the 
A-5222-15T2

55

assigned attorney is actually compromised and is thereby depriving 

the client of effective assistance, our appellate courts are 

empowered to set aside final judgments or fashion other appropriate 

relief on that basis. See B.R., supra, 192 N.J. at 306.

We emphasize the importance of client communication about 

conflict issues, particularly at the outset of the Title Nine or 

Title Thirty case when the OPR staff attorneys are first assigned 

to represent co-defendant parents. Each assigned OPR attorney 

must discuss with the client the arrangements for the office's 

representation, including the screening procedures that will be 

maintained to assure confidentiality and independent advocacy. On 

this point, we are troubled that there is no assertion in the 

certification by G.S.'s staff attorney (unlike that from K.S.'s 

attorney) that such discussions about conflict with that 

particular client took place at the outset of this case in 2015.14

The discussion with the client and the client's assent to the 

arrangement should be documented in some uniform manner, either 

by a standard form or file memorandum that can be evidential if a 

future problem arises. In this regard, we do not decide in these 

appeals whether a written waiver by the client, as prescribed by 

RPC 1.7(b)(1), is the best means for substantiating the OPR 

 

14 This omission as to G.S., which was perhaps inadvertent, should 

be addressed on remand.
A-5222-15T2

56

client's acquiescence. We leave that question to further 

consideration by the OPR itself, or by a Supreme Court Committee 

if one is asked to examine these issues.

C.

The Court's Appropriate Role

The final major subject – which perhaps is the main reason 

why these particular interlocutory appeals were generated – is 

defining the court's appropriate role in reviewing and taking 

action on conflict issues implicated by the OPR's current postreform practice of relying principally on staff attorneys rather 

than pool counsel to represent co-defendant parents. The OPR 

contends that the trial court should generally defer considerably 

to the OPR's professional judgment in dealing "in-house" with such 

conflicts concerns, and to refrain from conducting sua sponte 

inquiries into the subject. The Law Guardian and the amicus are 

more supportive of the court taking a proactive role, although 

they agree with the OPR that it is generally entitled to 

substantial deference in handling such conflicts problems.

It is well established that an evaluation of whether a 

conflict exists in multiple representation cases is initially best 

addressed by the attorney or attorneys in each case. Opinion 552, 

supra, 102 N.J. at 206; Bell, supra, 90 N.J. at 173-74. The 

attorney must be "satisfied based on objective reasonableness that 
A-5222-15T2

57

there is no direct adversity between the defendants and that joint 

representation will not adversely affect the relationship of 

either class of defendants, RPC 1.7(a), nor materially limit his 

or her professional responsibilities towards any such clientdefendant, RPC 1.7(b)." Opinion 552, supra, 102 N.J. at 206. 

"Initially, it is the attorney's obligation when he first 

meets with his prospective clients to advise them of possible 

conflicts and of their constitutional rights." Land, supra, 73 

N.J. at 32. In keeping with such principles, Bell, supra, 90 N.J.

at 175, the Court institutionally "was satisfied that the New 

Jersey Public Defender is sensitive to the need to appoint outside 

counsel in cases of potential conflict."

The reasonableness of a lawyer's initial determination 

concerning a conflict of interest is subject to subsequent review 

by the court. Restatement (Third) of the Law Governing Lawyers, 

supra, § 121 comment g. "Although lawyers must engage in selfregulation as an initial matter, when the issue of conflict of 

interest arises in a disqualification context, the court has a 

supervisory role to play." Geoffrey C. Hazard, Jr. & W. William 

Hodes, The Law of Lawyering, vol. 1 at 236.2 (2d ed. 1992).

Here, the trial judge, who is charged with the duty to enforce 

the Rules of Professional Conduct under Rule 1:18, had the 

authority to both raise the potential conflict of interest, sua 
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58

sponte, and to consider the issue at an evidentiary hearing, if

the issue could not be resolved on the written record. State v. 

Murray, 162 N.J. 240, 250 (2000); Dewey v. R.J. Reynolds Tobacco 

Co., 109 N.J. 201, 222 (1988); Bell, supra, 90 N.J. at 173. We 

reject appellants' contention that the trial judge here acted 

prematurely or precipitously in ordering a hearing on the subject 

and in attempting to ascertain whether sufficient informed client 

waivers had been procured. 

Although we are not persuaded that the history of domestic 

violence of both parents with one another and their mutual 

substance abuse posed a sufficient conflict to require client 

waiver, when the defendants advocated conflicting parenting plans, 

that event tipped the balance enough to justify the court's sua 

sponte order for a hearing. The parenting plans were diametrically 

opposed: the mother's preferred plan was for her to maintain a 

caretaking role in a KLG with her relative, whereas the father's 

plan would instead have the children reunified solely with him. 

If, for example, an expert witness were called by the mother's 

attorney to opine on the merits of her plan, the father's attorney 

would have a strong tactical incentive to impeach that expert 

through cross-examination or by proffering a competing expert to 

criticize the mother's plan. That head-on divergence of positions 

triggered the need to be certain that the two staff lawyers 
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59

involved were not impeded from advocating their clients' positions 

and that their clients understood the arrangements within the OPR 

office and assented to them. We do not go so far as to say that 

the trial court was required to investigate the conflicts problems, 

but the court certainly did not abuse its discretion in raising 

the issue and calling for a hearing with the clients present.

The OPR appellate attorney has expressed concerns about the 

potential for a conflicts hearing to reveal confidential or 

prejudicial information inadvertently if the clients testified at 

such a proceeding. Although those disclosure risks are not 

fanciful, we are confident that the trial court can structure the 

inquiries at such a proceeding in a manner that minimizes that 

risk. By comparison, our criminal courts similarly deal routinely 

with such disclosure risks at hearings when defendants wish to 

discharge their assigned counsel and represent themselves. See, 

e.g., State v. Crisafi, 128 N.J. 499, 509 (1992) (regarding 

judicial inquiries at hearings to assure a criminal defendant is 

waiving his right to assigned counsel "knowingly and 

intelligently"). 

That said, we discern the need to modify the trial court's 

rulings here in one significant respect. Although we appreciate 

the judge's prophylactic good intentions in assuring that the 

representation of co-defendant parents in Title Nine and Title
A-5222-15T2

60

Thirty cases is not compromised in future cases, the judge erred 

by importing into this OPR context the specific procedures for 

criminal representation prescribed by the Court in Bell and further 

codified in Rule 3:8-2

15 of our Rules of Criminal Practice.

We recognize that Bell detailed, in essence, a hierarchy of 

preferred arrangements for the representation of indigent codefendants in criminal cases: first, deeming the use of outside 

pool counsel as "the norm"; second, "as the next preferable 

course," assigning deputy public defenders from an adjoining 

county; and third, as a last resort, providing counsel by multiple 

staff attorneys within the same local office, with appropriate 

screening. Bell, supra, 90 N.J. at 174.

We decline to impose an identical hierarchy in this setting, 

an approach that the OPR, the Law Guardian, and the Bar Association 

all likewise disfavor for application to Title Nine and Title

 

15 Rule 3:8-2 provides as follows:

No attorney or law firm shall be permitted to 

enter an appearance for or represent more than 

one defendant in a multi-defendant indictment 

without securing permission of the court.

 Such motion shall be made in the presence 

of the defendants sought to be represented as 

early as practicable in the proceedings but 

no later than the arraignment so as to avoid 

delay of the trial. For good cause shown, the 

court may allow the motion to be brought at 

any time.
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61

Thirty cases. As a policy matter, the Court's opinion in Bell in 

1982 could not have anticipated the reforms of the child-welfare 

pool attorney system that were recommended in the early 2000s and 

which have finally been fully implemented. Those reforms conflict 

with Bell's treatment of pool attorney representation in criminal 

cases as "the norm."

Second, there are qualitative differences between criminal 

litigation, which tends to focus retrospectively on evidence of 

past events bearing on whether a defendant committed an offense, 

and child welfare litigation. The latter tends to be more dynamic 

and forward-looking, and a setting in which the lawyer-client 

relationship can involve much broader concerns for trial advocacy 

than disproving past wrongdoing. 

Third, the second-preferred option in Bell of using staff 

attorneys from adjoining counties is not readily feasible here 

since there are only eight regional OPR offices for the twentyone counties. The defendant parents consequently may have 

transportation impediments in traveling to their attorneys' 

offices. 

Lastly, as we have already mentioned, we respectfully suggest 

that a broader study of these issues by a Committee is preferable 

to the adoption in these appeals of the trial court's preemptive 

mandate for a demonstration of the need to use staff attorneys at 
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62

the outset of every Title Nine and Title Thirty case. In that 

same vein, we defer to the Supreme Court on whether a Court Rule 

for Part V children-in-court cases akin to Rule 3:8-2 should be 

adopted.

For these reasons, we affirm, with this important 

modification, the trial court's orders calling for a hearing to 

explore whether the continued representation of G.S. and K.S. by 

separate staff attorneys within OPR-Central is appropriate under 

the RPCs; whether the respective clients have waived any applicable 

conflicts-of-interest with their informed consent; and whether 

sufficient screening measures within the OPR office are being 

maintained. The remand hearing on the conflicts issues shall be 

completed within sixty days. Thereafter, depending on the 

disposition of that hearing, the litigation may be concluded with 

appropriate representation.

IV.

As a final word, we wish to make clear that our discussion 

of these important representational issues should not be misread 

as a suggestion that any of the staff attorneys or their 

supervisors in this case have engaged in unethical or inappropriate 

conduct. Indeed, the advocacy of co-defendants' competing 

parenting plans by the two staff attorneys in OPR-Central provides 

a strong indication of their professional independence in serving 
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63

their respective clients.

We likewise do not wish to suggest that the trial judge in 

this case was unjustified in wanting to delve into and resolve the 

conflicts issues before the case proceeded to a final hearing and 

final order. In fact, we commend the judge for conscientiously 

placing an important spotlight on these vital issues, and for his 

thoughtful written opinions addressing them.

We do not presume in this opinion to resolve all of the 

institutional issues that are posed here. We hope and respectfully 

suggest they will be examined more comprehensively and deeply by 

a designated Supreme Court Committee with, of course, the 

collective input and wisdom of the OPR, other stakeholders, and 

experts in the field.

V.

The trial court's rulings on the conflicts issues are 

accordingly affirmed, as modified. The matter is remanded for a 

hearing consistent with this opinion. We do not retain 

jurisdiction.