Reference no: EM133685477

You are the court-appointed lawyer for Larry and Donna, a married couple who are defendants in a case brought by the Department of Social Services ("DSS") to terminate their parental rights over their daughter Mirabelle. The DSS case started when a hospital nurse reported to DSS that Mirabelle, age 15 months, was badly scalded by hot water in the kitchen sink. Donna claimed that Mirabelle climbed into the sink and turned on the hot water while Donna was sleeping. The nurse found the burns were inconsistent with Donna's explanation. The court then ordered Mirabelle to be removed from the home temporarily and placed in foster care. After court-ordered counseling, the court returned Mirabelle to Larry and Donna.

A month later, Larry got into trouble: He stole a gun, was apprehended, tested positive for methamphetamine and lied to the DSS about using drugs. During a home visit, a DSS worker discovered Larry also downloaded child pornography to his home computer. He was also arrested for hitting Donna in a parking lot. A criminal case on the gun, drug, and assault charge are pending, but Donna does not want to press charges, so the assault claim will likely be dismissed. No criminal charges were filed based on the child pornography due to potential Fourth Amendment violations. Because of Larry's conduct, DSS reopened its case regarding the parental rights of Larry and Donna.

You have spoken to Larry at length about these incidents. Larry acknowledges that most of DSS's claims about his conduct are true and, in response to a question from you, also reveals that he hit Donna on a different occasion a few months ago when he came home drunk. Donna did not tell you about that incident, and DSS does not know about it.

Under the law in the state where you practice, a court may terminate parental rights of a parent if they "knowingly place or knowingly allow a child to remain in conditions or surroundings that endanger the child's physical or emotional well-being."

Larry and Donna want to stay married and raise Mirable and both would prefer that Donna not have to testify against Larry. However, they recognize that the case for terminating Larry's rights is stronger than against Donna. If necessary to avoid the termination of her parental rights, Donna would agree to live apart from Larry and testify against him. Larry agrees to this if it is necessary to avoid losing Mirabelle to state custody.

Consider all possible Ethical Rules that may be applicable and explain your answers.

1. After you have explained all potential conflicts of interest orally and in writing, Larry and Donna still want you to represent both of them. You would like to do so if you can. May you do so?

2. You talk further with your clients and learn that Larry has a violent temper, especially when he drinks. Although Larry has never assaulted their daughter, Mirabelle, you believe that if the couple stays together, Mirabelle will be exposed to further abuse against Donna, which would be traumatic for Mirabelle. Because of this, you believe that you cannot ethically continue to represent them both. You believe that Donna should retain custody of Mirabelle. You would like to withdraw from representing Larry and to continue to represent Donna. is this allowed under the rules?

3. You move to withdraw from representing Larry, or if the court will not allow you to withdraw only from representing Larry, then you withdraw from representing them both. However, the court denies your motion, wanting to avoid even more delays in the resolution of the case. Should you continue to represent both parties or refuse to participate in the trial?