How many DA's are representing CPS? I have multiple counties in my District. In one our County Attorney represents CPS and in another I do. My concern is that I think there is a built in conflict of interest in any case that appears to need a felony prosecution. I'm curious about the division of representation. I'm also wondering about Juveniles because I hear that many of those cases are prosecuted by County Attorneys as well.

Why would you think that there's a built in "conflict of interest" just because of a possibly felony prosecution? Even in cases of protective orders, the law allows the DA/CA to represent CPS.

In 2004 there was a study of representation of DFPS by DAs and CAs.

Overall, local prosecutors -- DA's, CDA's and CA's do over 90% of the DPFS representation.

It concluded that well over 50% of the DFPS cases were handled in the urban areas by the prosecutor office, all of which have felony jurisidiction. (The only change came when a few years back the Harris County Attorney took over the DFPS work).

In addition, even in the more rural counties, the representation is done by the CDA's, who have felony jurisdiction.

The only exception appeared in some rural areas, where some of the CA's didn't do the work, but DPFS attorneys do the work in some cluster courts.

So, bottom line is, it is very common for prosecutors with felony jurisidiction to do this work...

In Parker County, the County Attorney's Office handles the CPS cases.

There can be a very real conflict of interest. If you have ever sat in on some of the CPS hearings, then you know what I'm talking about. The respondent in the CPS case is under a lot of pressure to answer questions in order to demonstrate they are complying with CPS and the requirements of a family plan.

If there is a pending felony case (drugs, child endangerment, etc.,), then answering those questions could be just like waiving one's 5th amendment privilege against self incrimination. If you are the prosecutor, and also the CPS attorney in one of these cases, there is a very real conflict of interest.

What John describes is what happened to me in a CPS case involving a family where a child died.I felt like a snake listening to and then later using the suspect's statements against him.I discussed this with our CPS today and she said that in all of the rural areas in this area the County Attorneys are representing CPS. If I were to ever become a defense attorney I would fight like heck to get the office that represented CPS recused from prosecuting the criminal case.The Defendant is not represented by an attorney at those initial hearings.

The conflict (or more precisely the possibility or appearance of a conflict) is what prompted the Fort Bend District Attorney's Office to seek legislation to allow the County Attorney to take over the caseload. (The Fort Bend County Attorney's Office only handles civil matters.)

P.S.-There's a thread on the forum about the ethical issues surrounding pleading guilty in exchange for voluntary relinquishment in the related CPS case. It touches on the question of whether such a conflict exists.

[This message was edited by David Newell on 08-29-08 at .]

I don't disagree with the general sentiment that there is an aura of unfairness, and perhaps "piling on", inherent in the fact that representation of CPS may provide an otherwise unavailable means of eliciting inculpatory statements from a respondent/defendant. But I don't think it's a true conflict of interest, at least as far as the Disciplinary Rules of Professional Conduct see it.

Rule 1.06, the stock conflict of interest rule, concerns itself with lawyers representing opposing clients (or former clients). Some of its concerns, too, derive from the prospect of usurping and the confidentiality required under Rule 1.05 and using such information to the detriment of a client or former client. Here, unless the prosecutor is serving as respondent's counsel in the CPS case, those concerns aren't squarely presented. Instead, Rule 3.09(c) (prosecutor shall not initiate or encourage efforts to obtain from an unrepresented accused a waiver of important rights), Rule 4.03 (dealing with unrepresented person) and Rule 4.04(b)(1) (lawyer shall not present, participate in presenting or threaten to present criminal charges solely to gain an advantage in a civil matter) seem more directly implicated.

But, again, I don't disagree with the sentiment. We (the CA's office) handle CPS cases up here. But we also handle misdemeanors. Where the two converge, it can present significant dilemmas. Our CPS attorney generally is walled-off (literally and figuratively) from our criminal division. But the discomfort can remain, though, candidly, most of the criminal cases arising out of CPS cases turn out to be felonies that the DA -- not our office -- handles.

I think the biggest problem is in offices that prosecute felonies, misdemeanors, and represent CPS (offices like mine).

David Why was legislation required to have the County Attorney handle your cases?

In Hood County, the DA represents CPS. I don't see a conflict. I understand that a respondent may be in a difficult position by answering questions relating to child abuse. However, he is in that position regardless of who is asking the questions. If the CA represented CPS, would it be unethical for the DA to sit in the courtroom during a CPS hearing or request a transcript of testimony? My judge has admonished pro se witnesses before allowing attorneys for the State to ask questions that might incriminate witnesses. Does that happen in other counties?

There is a statute that sets out the power and authority of the Fort Bend District Attorney (and one that does the same for the Fort Bend County Attorney). However, it specifically limited each office on the handling of CPS cases (DA gets it, County Attorney doesn't.). There were discussions about the ability of the County Attorney voluntarily taking on the cases at the formal request of the DA. However, the consensus was that it was better to make a formal change through legislation in the abcense of a defintive answer on whether such dual representation created a conflict. (Fort Bend has been the focus of some creative CPS litigation, so the increased formality of the change seemed a net plus.)

Both offices worked together on the issue very well. Very gracious on both sides, and there was never any dip in the quality of representation.

Also, I was an observer involved in some of the discussions, so my statements in this regard (and the description of events) reflect only that experience and not the opinions of any elected official.

[This message was edited by David Newell on 08-29-08 at .]

I do not see a conflict. There is no "divided loyalties" problem that is present. As prosecutors we are not switching sides from one case or client to another. We represent the State in both cases.

Until you learn something in the scope of the attorney-client relationship that could be considered Brady material for purposes of the criminal case... I ran into that problem in a protective order once. We recused ourselves and the Brady information was able to come to light without the attorney-client confidence being violated.

If CPS was your client, what was the problem with revealing the Brady information?

Everyone representing CPS needs to read In The Interest of M.N., 07-0698, 8/29/2008. The Supreme Court ruled that their rules trump the statute 263.405(b) when it comes to the 15 day deadline. Attorneys now may file an extension to file the statement of poinst of appeal, and if the trial court believes good cause is shown, the extension is granted. So much for the legislative intent of speeding the process up for these children. The dissent got it right, stated the court needed to decide the due process issue, and not rewrite statutory construction.

Thanks for that heads up. It would be one thing to have decided this on due process grounds, but to completely and blatantly announce that they're just not going to follow the statute because they think they know better? Good grief!

I just reread my brief. The issue centered more on TRAP 26.3 extending deadlines, not Civil Procedure. But I think the statutory construction laws would apply equally to all rules - but I guess they don't when the Supreme Court wants to change the rules of statutory construction. What is really sad is they never granted review. They sent a letter requiring expedited briefing, but said they had not granted review. I hope this is not going to be published - we will be fighting statutory construction principles forever under this.