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Dual Representation in DYFS cases and criminal cases:  What is the right answer for parents?

Many times parents face two parts of the legal system simultaneously when they face DYFS litigation and criminal prosecution for the same actions.  Often parents will choose to use the same attorney for both the criminal matter and the family court matter.  DYFS has objected to the practice of dual representation in parallel or companion proceedings, and courts in different counties have made different rulings.  A recent trial court decision out of Bergen County is the latest installment.

Unless you are Governor Corzine, or someone of his stature, it is usually too costly to hire a team of attorneys to handle your legal problems.  What has worked best for clients when navigating the treacherous shoals of the legal system is to have one competent and trustworthy attorney to guide and advise the client.  There have been many instances where a parent has been served (1) by DYFS with a civil lawsuit, AND (2) with a criminal complaint or indictment by law enforcement.  Most people of ordinary means choose to have one attorney handle both matters.

For whatever reason, DYFS under the Corzine administration has decided that it does not like dual representation.  In recent years, DYFS has filed formal legal objections when parents choose to use the same attorney for the DYFS litigation and for related criminal proceedings.  DYFS objects on the basis that a DYFS defense attorney will have acces to privileged and confidential DYFS whereas a criminal defense attorney would not. 

Their objection overlooks one very important point:  The parent in both proceedings is the same parent, and as such would be entitled to see and hear all of the DYFS record, and would be free to tell their criminal defense attorney what they learned in their DYFS case.

Courts in different counties have ruled different ways in different cases.

A recent Bergen County trial court decision has muddied the waters even more.  In a published decision in DYFS v. JC, the Law Division accepted DYFS’s argument, and ruled that dual representation was inappropriate in that case.  The JC decision is a published decision.  However, it remains to be seen whether other trial courts will follow it.  At some point, the Appellate Division needs to step in to clarify what up to this point is an unsettled question.


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