Attorney Communication with DSS

The role of DSS in an Article 6 proceeding is much different ' unless and until an Article 10 proceeding is commenced, DSS is involved only as an investigative body, not as a party (as in an Article 10 proceeding). Hence DSS is not a “represented” party in an Article 6 proceeding, as it is in an Article 10 proceeding. Consequently, it is not protected by the same rules against contact by the parties' attorneys.

There was little guidance to be found on this issue ' not in the Family Court Act, the Rules of Court or case law ' until the recent Appellate Division, Second Department case, Matter of Madris v. Oliviera, 97 AD3d 823 (2nd Dept. 2012). Madris v. Oliviera involved two related child custody proceedings under Article 6 of the Family Court Act (FCA) in Nassau County Family Court. Pursuant to the statutory authority of FCA ' 1034, the court directed that an investigation be completed by Nassau County DSS. The father (and the child) allegedly reported difficulty communicating with the assigned DSS caseworker due to a language barrier. The father's attorney wrote to the caseworker's supervisor at DSS to alert her to the alleged language barrier and to ask that the supervisor interview the parties and the child to ensure that a complete and accurate report was produced for the court. The letter was copied to the attorney for the mother and the attorney for the child.

The mother's attorney made a motion to disqualify the father's attorney (and firm), on the basis, inter alia, that the attorney had violated' Rule 4.2 of the Rules of Professional Conduct, engaging in improper ex parte communication with DSS by transmitting the letter to the caseworker's supervisor. The Family Court granted the mother's motion, thereby disqualifying the father's attorney (and the firm) from representing the father.

The court found that “the father's attorney sent a letter to the Supervising CPS Caseworker at the Nassau County Department of Social Services dated September 28, 2011. The Department of Social Services is an agency of the County of Nassau and represented by the office of the Nassau County Attorney ' the attorney for the father failed to prove that consent was obtained from the County Attorney to have the father's attorney directly communicate with the CPS worker regarding the subject matter herein and the attorney for the father failed to give notice to the County Attorney that any such written communications would be taking place pursuant to Rule 4.2(a) and Rule 4.2(b).” Based on this finding, the court held that ” ' the father's attorney violated Rule 4.2(a) and Rule 4.2(b) [of the New York Rules of Professional Conduct] by engaging in direct written communication with the Nassau County Department of Social Services.”

On the father's appeal, the Appellate Division, Second Department, reversed the Family Court's order of disqualification against the father's attorney and denied the mother's underlying motion.

The Second Department held:

The court ' misapprehended the role of the DSS where it has merely been assigned as the agency to complete a court-ordered investigation. 'An entity cannot claim blanket protection from ex parte interviews by taking the position that house counsel is responsible for all future legal matters affecting that entity' (Schmidt v. State of New York, 181 Misc 2d 499, 504 aff'd 279 AD2d 62, citing ABA Comm on Ethics and Prof Responsibility Formal Op 95-396[1995]). Similarly, 'if a governmental party were always considered to be represented by counsel for purposes of [the rule against ex parte communications] the free exchange of information between the public and the government would be greatly inhibited' Schmidt v. State of New York, 279 AD2d 62, 65 [citation and internal quotation marks omitted]). Because DSS was not a represented party within the meaning of Rule 4.2(a) of the Rules of Professional Conduct (22 NYCRR 1200.0), the court erred in disqualifying the father's attorney and the attorney's law firm on that basis ' .

Madris v. Oliviera, 97 AD3d 823 at 825-826.

The Second Department found the determinative factor to be that DSS was only an investigator in the Article 6 case and not the prosecuting party, as it is in an Article 10 case. As such, in this situation DSS was not a “represented” party. This holding confirms that, although the Family Court's authority to direct DSS to conduct the investigation is found at FCA '1034 in Article 10 governing child protective proceedings, utilizing such authority to order an investigation in an Article 6 case does not in any way change DSS's role as that of an investigator only.

When a Change May Occur

Taking the situation presented in Madris v. Oliveira a step further, it is possible that DSS could uncover as part of a court-ordered investigation in an Article 6 case evidence of abuse or neglect that would lead to DSS to commence an Article 10 case against a party. If DSS did in fact commence an Article 10 case against a party they were investigating in an Article 6 case, DSS would then become a “represented” party, not just an investigator. At that point, the party's attorney could no longer contact DSS without consent of the prosecuting agent (the County attorney or office of the Corporation Counsel in New York City). But, unless and until DSS commences an Article 10 case, the Second Department has made it expressly clear that, when a social services agency is appointed to conduct an investigation attendant to a Family Court Article 6 proceeding, DSS is not a “represented” party within the meaning of Rule 4.2 of the Rules of Professional Conduct. Therefore, the Second Department's decision in Madris v. Oliviera appears to permit certain communication with DSS concerning DSS's investigation.

Conclusion

There are many questions that remain unanswered by Madris v. Oliviera. The Second Department found it was not improper for the father's attorney to write a' letter to the DSS caseworker's supervisor, copied to the mother's attorney and the attorney for the child, addressing an alleged communication issue with the caseworker. So must such communication be copied to all attorneys on a case? What if the caseworker were contacted directly? Is a telephone call permissible? What issues may be addressed with DSS by a party's attorney? What conduct by a party's attorney would be considered interference with an investigation?

These and many other issues with court ordered investigations are common, but there remains little guidance as to how best for the family law practitioner to address them, and to whom. However, it does appear that Madris v. Oliviera has opened the door, judicially speaking, for “reasonable” and “justifiable” communication with DSS during the course of a Family Court custody matter, to ensure the investigation is done properly.

Jerome A. Wisselman, a member of the newsletter's Board of Editors, is a partner in the Great Neck firm of Wisselman, Harounian & Associates, P.C. Lisa M. Gregg is an associate with the firm.'

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We discussed in Part One of this article the fact that, in Article 10 proceedings when Family Court orders DSS to conduct an investigation, attorneys for the responding party and for the child may not contact DSS. That is because DSS is both an investigating body and a represented party in the proceeding; because it is a represented party, the Rules of Professional Conduct apply to prohibit direct contact with DSS. But is the same true of Article 6 proceedings?

Article 6 Proceedings

The role of DSS in an Article 6 proceeding is much different ' unless and until an Article 10 proceeding is commenced, DSS is involved only as an investigative body, not as a party (as in an Article 10 proceeding). Hence DSS is not a “represented” party in an Article 6 proceeding, as it is in an Article 10 proceeding. Consequently, it is not protected by the same rules against contact by the parties' attorneys.

There was little guidance to be found on this issue ' not in the Family Court Act, the Rules of Court or case law ' until the recent Appellate Division, Second Department case, Matter of Madris v. Oliviera , 97 AD3d 823 (2nd Dept. 2012). Madris v. Oliviera involved two related child custody proceedings under Article 6 of the Family Court Act (FCA) in Nassau County Family Court. Pursuant to the statutory authority of FCA ' 1034, the court directed that an investigation be completed by Nassau County DSS. The father (and the child) allegedly reported difficulty communicating with the assigned DSS caseworker due to a language barrier. The father's attorney wrote to the caseworker's supervisor at DSS to alert her to the alleged language barrier and to ask that the supervisor interview the parties and the child to ensure that a complete and accurate report was produced for the court. The letter was copied to the attorney for the mother and the attorney for the child.

The mother's attorney made a motion to disqualify the father's attorney (and firm), on the basis, inter alia, that the attorney had violated' Rule 4.2 of the Rules of Professional Conduct, engaging in improper ex parte communication with DSS by transmitting the letter to the caseworker's supervisor. The Family Court granted the mother's motion, thereby disqualifying the father's attorney (and the firm) from representing the father.

The court found that “the father's attorney sent a letter to the Supervising CPS Caseworker at the Nassau County Department of Social Services dated September 28, 2011. The Department of Social Services is an agency of the County of Nassau and represented by the office of the Nassau County Attorney ' the attorney for the father failed to prove that consent was obtained from the County Attorney to have the father's attorney directly communicate with the CPS worker regarding the subject matter herein and the attorney for the father failed to give notice to the County Attorney that any such written communications would be taking place pursuant to Rule 4.2(a) and Rule 4.2(b).” Based on this finding, the court held that ” ' the father's attorney violated Rule 4.2(a) and Rule 4.2(b) [of the New York Rules of Professional Conduct] by engaging in direct written communication with the Nassau County Department of Social Services.”

On the father's appeal, the Appellate Division, Second Department, reversed the Family Court's order of disqualification against the father's attorney and denied the mother's underlying motion.

The Second Department held:

The court ' misapprehended the role of the DSS where it has merely been assigned as the agency to complete a court-ordered investigation. 'An entity cannot claim blanket protection from ex parte interviews by taking the position that house counsel is responsible for all future legal matters affecting that entity' ( Schmidt v. State of New York , 181 Misc 2d 499, 504 aff'd 279 AD2d 62, citing ABA Comm on Ethics and Prof Responsibility Formal Op 95-396[1995]). Similarly, 'if a governmental party were always considered to be represented by counsel for purposes of [the rule against ex parte communications] the free exchange of information between the public and the government would be greatly inhibited' Schmidt v. State of New York , 279 AD2d 62, 65 [citation and internal quotation marks omitted]). Because DSS was not a represented party within the meaning of Rule 4.2(a) of the Rules of Professional Conduct (22 NYCRR 1200.0), the court erred in disqualifying the father's attorney and the attorney's law firm on that basis ' .

Madris v. Oliviera , 97 AD3d 823 at 825-826.

The Second Department found the determinative factor to be that DSS was only an investigator in the Article 6 case and not the prosecuting party, as it is in an Article 10 case. As such, in this situation DSS was not a “represented” party. This holding confirms that, although the Family Court's authority to direct DSS to conduct the investigation is found at FCA '1034 in Article 10 governing child protective proceedings, utilizing such authority to order an investigation in an Article 6 case does not in any way change DSS's role as that of an investigator only.

When a Change May Occur

Taking the situation presented in Madris v. Oliveira a step further, it is possible that DSS could uncover as part of a court-ordered investigation in an Article 6 case evidence of abuse or neglect that would lead to DSS to commence an Article 10 case against a party. If DSS did in fact commence an Article 10 case against a party they were investigating in an Article 6 case, DSS would then become a “represented” party, not just an investigator. At that point, the party's attorney could no longer contact DSS without consent of the prosecuting agent (the County attorney or office of the Corporation Counsel in New York City). But, unless and until DSS commences an Article 10 case, the Second Department has made it expressly clear that, when a social services agency is appointed to conduct an investigation attendant to a Family Court Article 6 proceeding, DSS is not a “represented” party within the meaning of Rule 4.2 of the Rules of Professional Conduct. Therefore, the Second Department's decision in Madris v. Oliviera appears to permit certain communication with DSS concerning DSS's investigation.

Conclusion

There are many questions that remain unanswered by Madris v. Oliviera. The Second Department found it was not improper for the father's attorney to write a' letter to the DSS caseworker's supervisor, copied to the mother's attorney and the attorney for the child, addressing an alleged communication issue with the caseworker. So must such communication be copied to all attorneys on a case? What if the caseworker were contacted directly? Is a telephone call permissible? What issues may be addressed with DSS by a party's attorney? What conduct by a party's attorney would be considered interference with an investigation?

These and many other issues with court ordered investigations are common, but there remains little guidance as to how best for the family law practitioner to address them, and to whom. However, it does appear that Madris v. Oliviera has opened the door, judicially speaking, for “reasonable” and “justifiable” communication with DSS during the course of a Family Court custody matter, to ensure the investigation is done properly.

Jerome A. Wisselman, a member of the newsletter's Board of Editors, is a partner in the Great Neck firm of Wisselman, Harounian & Associates, P.C. Lisa M. Gregg is an associate with the firm.'

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