Lomanto v. Agbelusi

Background

This opinion concerns the appointment of lawyers for the minor children, R.A.L. and S.M.L., in a proceeding under the Hague Convention. On October 24, 2022, Sarah Phillips of Simpson Thatcher & Bartlett LLP filed a notice of appearance for the children. The court provisionally appointed the firm as counsel the next day and then considered written submissions and oral arguments from the firm and the parents.

The petitioner, identified as the father, objected generally to appointing independent counsel for the children. He argued that the respondent, identified as the mother, already had lawyers who could present evidence concerning defenses involving the children, including alleged grave risk of harm and the children’s wishes. He also argued that appointing new counsel could create delay. He separately challenged Simpson Thatcher’s qualifications, its lack of registration under a New York State rule that he argued applied to guardians ad litem, and its referral by Davis Polk & Wardwell LLP, which represented the respondent on a pro bono basis.

Appointment of Independent Counsel

The court rejected the general objection to appointing counsel. It concluded that independent representation was consistent with procedures used by district courts in Hague Convention cases and warranted because the case presented complex and delicate issues concerning the children. The court particularly noted the possibility that one or more children might be questioned by the court, including privately.

The court also rejected the assumption that the children’s interests and views would necessarily match the mother’s. It stated that independent counsel was appropriate precisely because those interests might differ. The court did not view the appointment as making the children formal parties to the case and explained that appointing counsel did not require waiting until after a private review with the children.

The court limited counsel’s role to issues arising under the Hague Convention. Counsel would advance the children’s articulated wishes, help them understand the proceeding, and appear on their behalf as needed for the court to assess the parties’ claims. Counsel would not conduct a best-interests analysis or make recommendations about the underlying custody dispute. Because both parents purported to represent the children’s interests, the court found counsel more appropriate than a guardian ad litem for this limited purpose.

Simpson Thatcher’s Qualifications and Alleged Conflict

The court found Simpson Thatcher qualified because it had experience in the specific role of representing children in Hague Convention proceedings, as well as experience representing children in New York State Family Court matters. The court rejected the petitioner’s reliance on a New York State registration rule, explaining that the rule appeared to govern New York State courts rather than the Southern District of New York. In any event, the court appointed counsel for the children, not a guardian ad litem.

The court also found no conflict preventing Simpson Thatcher from representing the children. The petitioner had not shown that anything beyond a mere referral connected Simpson Thatcher to Davis Polk or demonstrated that a referral created an impermissible conflict or bias. The court stated that a parent’s mere referral of counsel could be permitted in analogous custody proceedings, although a parent could not retain the children’s counsel.

The court found the location of Phillips’s courtroom seat irrelevant and found no evidence of bias from a separate honor given by Sanctuary for Families to another Simpson Thatcher attorney for work on another case. It further emphasized that court-appointed counsel owed professional duties of loyalty, independent judgment, candid advice, and advocacy of the children’s position. The court reasoned that those duties were not changed because another lawyer had referred the firm.

The court also rejected delay as a reason to replace Simpson Thatcher. Because the matter was proceeding on an expedited basis, finding and appointing entirely new counsel would itself cause delay and require new counsel to learn the case and meet the children.

Appointment of Co-Counsel and Disposition

Because the case was highly contested and involved sensitive allegations concerning the children’s health and welfare, the court decided that an additional lawyer with experience representing children in Hague Convention cases was appropriate. Judge Oetken therefore appointed Professor Jennifer Baum, Director of the Child Advocacy Clinic at St. John’s University School of Law, as co-counsel with Simpson Thatcher.

The court ordered that Simpson Thatcher & Bartlett LLP and Professor Jennifer Baum be appointed as co-counsel for R.A.L. and S.M.L. in the Hague Convention proceeding. The opinion did not decide whether the Hague Convention required the children’s return to Spain or resolve the parties’ underlying custody dispute.