Malone, NY asked in Child Custody and Family Law for New York

Q: Is it legal for a public defender to represent me when he represented my ex in a case in 2011?

I was assigned a counsel for an article 10 case who represented my kids' father back in 2011 in a criminal case. I feel this could be grounds for a conflict of interest because he may have personal feelings in this case. I wouldn't feel this way if the attorney replied to any of my emails or contacted me back after several (six) months of calling, emailing, and texting. He has not told me any evidence that is against me nor has he explained to me the offer that he is reluctant for me to agree to. I also overheard him speaking with the DA on several cases and when mine came to his attention instead of referring to me as his client he referred to me as an issue. I want to know what are my legal grounds if any!

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2 Lawyer Answers
Lawrence Allen Weinreich
Lawrence Allen Weinreich
Answered
  • Divorce Lawyer
  • Garden City, NY
  • Licensed in New York

A: There is nothing "illegal" per say in the attorney's representing you. However, based upon the fact that there is no communication between you and the attorney, you can request a new attorney be assigned.

Peter Christopher Lomtevas
Peter Christopher Lomtevas
Answered
  • Divorce Lawyer
  • Brooklyn, NY
  • Licensed in New York

A: A classic government ruse is to provide the accused public with free attorneys. The government accuses, and the government provides the defense. The government sits on both sides of the transaction. This asker inquires about a lawyer who represented an ex who may be impaired representing the asker. The question is which conflict of interest is more substantial, the government’s or the free lawyer’s?

In any interaction between government and the asker, the government always wins. Government has the resources and people to get any outcome it wants. Government hires all the lawyers, hires the judge, makes up evidence and coerces a settlement (which is in reality a political compromise). Politics drive an agenda, and the court is set up to impose that agenda under the guise of due process.

As for the free attorney, government has set up a no-win situation for the public. Only a handful of select attorneys are burdened with hundreds if not thousands of cases each. The public attorney does not know one client from another. Lawyers outside this circle are not hand-picked for this duty. This means it is very highly likely a lawyer will have represented a loved one previously given the huge number of cases the government files, and the few free attorneys who are hired by government end up representing the accused. The asker may request a change in attorneys only to get another lawyer who also represented a loved one in the past.

A privately retained attorney is a solution to this problem, but private counsel cost money. The free lawyer has to watch his step with government because he will lose his job, but private counsel has enormous freedom to mount any defense in an attempt to beat government at its own game. Such a beating is rare but can be done. Money buys justice.

This discussion about government is necessary because an Article 10 proceeding in family court is a policy article that is intended to protect kids from harm. It is one-way process that is the same in every case. There is the assignment of a law guardian to the child, an arraignment, no defense and no answer is required. The child is assumed to be hurt and the accused is presumed to have done it. Up-front relief is the norm and as the case ages, there are two trials which result in a finding that the petition is sustained which is mostly that finding. It is quite rare for one of these petitions to be denied and dismissed because the government can create new facts as the case goes along.

One example is the government imposes supervised visitation on a mother who was a victim of domestic violence. The mother later allowed the abusive man near her and the child. The CPS apparatus spotted this, and filed a new petition against the mother accusing her of neglect by placing the child in danger. All men are presume dangerous and men with orders of protection are especially presumed dangerous. Later, the mother wrote a nasty letter to the caseworker accusing the case worker of criminality, and the CPS apparatus filed a motion to force the mother into psychological evaluations which she refused to undergo. Yet another petition was filed against the mother for that refusal.

As for the asker’s question, she can always move for a new assigned attorney, but that could be an error if the asker does not understand the process that the laws have set up against her.

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