Criminal Defense Counsel may also serve as DYFS Counsel

On April 14, 2010, the Appellate Division rendered a decision in DYFS v. N.S., 412 N.J.Super. 593 (App.Div.2010), which reconciled the conflicting authority on the issue of representation of an accused parent in both a criminal matter and a DYFS matter.  The Division routinely objects to counsel representing the accused parent in both matters, premised upon the confidentiality provisions of N.J.S.A. 9:6-8.10a, which limits access to DYFS records to a limited number of individuals, not including criminal defense counsel.

Two published, conflcting trial court decisions had addressed the issue of representation in criminal and DYFS matters by the same attorney.  One trial court permitted the representation in parallel proceedings; one created an asbolute bar to such representation.

The N.S. Court finally resolved the issue by creating a case-by-case analytical framework, whereby a motion should be filed by the attorney seeking to serve in both roles, on notice to the Division, so that any confidentiality concerns can be addressed.  The Court noted that any concerns may be militated by use of a protective order barring release of certain records.

Of particular note is the Court’s suggestion on preserving confidentiality, while allowing the parent counsel of her own choosing: “a prohibition on providing photocopies of various records to parent-defendants could be effectuated”.  Of course, this necessarily implies that no such prohibition presently exists.  Thus, defense counsel should be mindful of this language when denying parents copies of DYFS records that will be used in their case.

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