Free Letter - District Court of Delaware - Delaware

Case 1 :07-cv—00600-JJF Document 28 Filed 04/1 1/2008 Page 1 of 3 F
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DEPARTMENT OF JUSTICE FAX (302) srv-2496 ;
NEW CASTLE COUNTY FRAUD DIVISION (302) 577-8600 I
JOSEPH R. BIDEN, III szn Noam FRENCH STREET FAX (302) 577-sims g
ATTORNEY GENERAL WILMINGTON, DELAWARE 19801 TTY (302) 577-5783
New Castle County Direct Dial: (302) 577-8510 _
Litigation Group [email protected] I
April 11, 2008
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Hon. loseph ]. Farnan, ]r.
United States District Court
District of Delaware
844 North King Street `
Wilmington, De 19801
Re: Smith, et al., v. State of Delaware
Na. 07-600-]]1=
Dear ]udge Farnan:
I represent the State of Delaware Division of Family Services (”DFS”) and
Kathleen Finn in the above-referenced lawsuit, which is in its early stages. The I
plaintiffs are represented by Rich Galperin and ]ames H. McI\/Iackin, III, and the
remaining defendants are represented by leff Marlin and Don Kinsley. The
` plaintiff Diane Smith acts as guardian ad litem for the minor plaintiffs, who are
- her children. The lawsuit arises out of an investigation by DFS into the abuse
and neglect of the children by the mother. The matter was originally heard in the
Family Court of the State of Delaware, with custody of the children eventually
restored to the mother, with guidelines and precautions as to care in place.
I need to raise with the Court misgivings I have regarding conflicts of interest on
the plaintiff side that have the potential to disrupt the litigation of this case. The
conflicts arise from the history of the matter, in that the State intervened to
protect the children from the mother. In the Family Court, I\/Ir. Galperin
represented the mother, and facilitated an amicable resolution of the case. i
Independent counsel was appointed to protect the interests of the children. In
this lawsuit, Mr. Galperin and his firm purport to represent both mother and
children, with regard to the same factual circumstances.
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Case 1 :07-cv—00600-JJF Document 28 Filed 04/1 1/2008 Page 2 of 3 I
My first concern is that the interests of the minor children are not compatible
with those of the adult plaintiff in this lawsuit. As in the Family Court, the
minor children should have independent representation. The mother should not
j be permitted to act as guardian ad litem, where her conduct with respect to the I
children will be a fundamental issue in this case, called into question by the
allegations against DFS and Ms. Finn that she makes in her lawsuit. lt is for an .
. independent guardian ud litem and conflict counsel (or a single lawyer acting in C
both capacities) to determine if the minor plaintiffs have any real claim or
interest in this litigation, and / or in the resolution of the case.
The second concern is the conflict created by Mr. Galperin’s role as counsel for
the adult plaintiff (but not for the children) in the Family Court matter. Suffice it
to say that Mr. Galperin took positions on behalf of his client in that case that are
totally at odds with the claims set forth in the Complaint in this lawsuit. At trial i
in this case, I would seek to introduce pleadings from the Family Court docket, j
as well as correspondence from Mr. Galperin on behalf of his client. I would
reserve the right to call Mr. Galperin as a witness to testify as to actions taken
and representations made on behalf of his client in Family Court, which are
inconsistent with the allegations she makes (and he has made on her behalf) in ,
this lawsuit.
I respect the fact that, at least initially, the resolution of these significant conflicts ;
should be a matter between Mr. Galperin and his client. That is why I took the
step of initially raising my concerns by letter directed to him, and the further step 5
of discussing them in detail with Mr. Galperin and other defense counsel. {
Regrettably, the response, from Mr. McMackin, has been to deny the existence of =
the conflicts. .
The plaintiff lawyers have questioned whether my clients, in effect, have
standing to raise this issue with the Court. Their Position seems to be that these
issues should be ignored by the defendants, and, presumably, the Court. The 1
State defendants see the interests of the adult plaintiff and the minor plaintiffs in
this case as being irreconcilable. As in the Family Court, it is the State that has a 1
duty, if only as an officer of the Court, to protect the children’s interests by j
raising this discrepancy. As a practical matter, discovery, settlement, motions, 1_
and trial of the case will be complicated, at the very least, if defense counsel are ,
unable to speak privately to an independent advocate for these children. I
believe that my clients would be unfairly prejudiced by the joint representation
of these plaintiffs, particularly before a jury. Moreover, a settlement or other
resolution of the minors’ claims would be subject to an unacceptable risk of
collateral attack, based on the conflict of interest. I therefore see a duty to call
this difficult issue to the Court's attention. ,

Case 1 :07-cv—00600-JJF Document 28 Filed 04/1 1/2008 Page 3 of 3
As to the second issue, I am merely anticipating an untenable situation that could
easily develop at trial - and that could conceivably result in a mistrial. The adult
plaintiff has effectively waived the attorney-client privilege as to the Family I
Court matter by filing this lawsuit. The Family Court record, much of which
directly contradicts her claims, will be offered in evidence to support the actions
of Ms. Finn and other DFS investigators, and to impeach the anticipated
testimony of Ms. Smith. To the extent that Ms. Smith would deny or obfuscate, “
with respect to the positions she took in dealing with the dependency / neglect
allegations, it could well be necessary for me to call Mr. Galperin as a witness, to
confirm that he took various positions (and wrote various letters) on behalf of his
client, with her knowledge and approval. The Rules of Professional Conduct
simply do not permit him to act as an advocate in a case where he is a witness,
called to impeach his client. And as this would be an ”imputed” conflict, it
cannot be avoided by using another lawyer from the same firm to handle the
case. .
Let me emphasize that I do not seek to prevent the adult plaintiff from pursuing 1
her claims, such as they are. I do believe that she will need new counsel to do so,
and that the minor plaintiffs should have a guardian ud litem and lawyer who is
independent. With these safeguards in place, the case could proceed without the .
risks arising from the present and potential conflicts of interest.
If Your Honor deems it more appropriate to deal with these issues by way of ;
motion, I would of course proceed in that manner. However, I am hopeful that ·
these issues could be discussed initially in conference with the Court. I have
therefore taken the liberty of this informal approach to an unusual and sensitive ;
problem. I should emphasize that all counsel have discussed these issues, in
good faith, but without resolution.
Respectfully submitted,
Daaiicgwma 1
Ralph K. Durstein, III l
Counsel for the State of Delaware, `
Division of Family Services, and g
Kathleen Finn D
xc: counsel of record {
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