JENSEN v. POINDEXTER

2015 OK 49

Summary: During the course of his representation of the father of a minor child, attorney William D. Thomas suspected mistreatment of the minor child. Thomas questioned the minor child without the knowledge or permission of the child's mother. Thomas then entered an affidavit personally attesting to the truthfulness of the minor child and filed an application for emergency custody of the child based upon the child's responses to his questions. Mother then filed a motion to dismiss Thomas as father's attorney because Thomas had become a necessary witness in the case. The trial court sustained the motion and father appealed. 

Legal Issues: The Oklahoma Supreme Court has previously ruled that a litigant has a fundamental right to be represented by counsel of his or her choice; but, a litigant's right to choose his or her counsel is "not absolute" and "may be set aside under limited circumstances, where honoring the litigant's choice would threaten the integrity of the judicial process." Towne v. Hubbard, 2000 OK 30. Attorneys are usually prohibited from acting as an attorney for either side when they are, or may become, necessary witnesses to the case. Oklahoma Rules of Professional Conduct 3.7. Because attorney Thomas performed a forensic examination of the minor child when no other person was present, mother was required to call Thomas as a witness in order to challenge the results of the questioning. As a result, the trial court's order disqualifying Thomas as an attorney in this action was sustained.

Discussion: The Court notes that attorneys are not uniformly prohibited from interviewing a child witness. In this case, it was necessary to call attorney Thomas as a witness in order to attack the validity of the findings reported from the interview. Justice Gurich, joined by Justice Kauger, issued a special opinion concurring in part and dissenting in part with the majority opinion. In particular, these Justices wished to make it clear that an attorney can and should interview a child witness when required to do so in preparation of their case. In addition, these Justices noted that while the father had not been officially declared as such in a judicial proceeding, that the father should be regarded as having all of the constitutionally protected rights regarding his relationship with his child. It is not clear if other Justices, or a majority of them, would concur with this finding.