Ethics Opinion 240
Ethical Obligations of D.C. Corporation Counsel Attorneys Representing Custodial Parents in Social Security Act Title IV-D Cases
Under Title IV of the Social Security Act of 1975, the District of Columbia Corporation Counsel provides legal assistance for the Child Support Enforcement Program mandated by Congress. Pursuant to this statute, D.C. Corporation Counsel represents both individual petitioners and the Government in actions against non-supporting spouses. (The Government becomes involved when it has been assigned a custodial parent's right to receive child support as a condition of the custodial parent's receiving benefits under the Aid to Families with Dependent Children program.)
In response to an inquiry by D.C. Corporation Counsel, this opinion examines the various potential ethical conflicts that can arise during such representations. In particular, D.C. Corporation Counsel should be concerned with several possible ethical difficulties. First, Corporation Counsel should make sure each petitioner knows both when he or she is, or is not, a client and what the consequences of not being a client are. Second, when Corporation Counsel discovers that it is representing two petitioners against the same respondent, it is advisable under Rule 1.7 to have two different lawyers represent the two petitioners and to take measures to keep the two attorneys from sharing information. Third, when shifts in child custody occur, care must be taken to analyze who was the client, who is now the client, and whether waivers must be obtained under Rule 1.9. In general, given the complexities involved in this form of representation, it is desirable for Corporation Counsel to assign someone to be "Ethics Advisor" to advise the IV-D lawyers of the various ethical dilemmas that may arise in representing IV-D petitioners and to attempt to minimize potential conflicts.
- Rule 1.6 (Confidentiality of Information)
- Rule 1.7 (Conflict of Interest: General Rule)
- Rule 1.9 (Conflict of Interest: Former Client)
- Rule 1.10 (Imputed Disqualification)
- Rule 4.3 (Dealing with Unrepresented Persons)
Under Title IV-D of the Social Security Act of 1975, the states, including the District of Columbia, are required to provide child support enforcement services to complement their Aid to Families with Dependent Children (AFDC) program.1 Specifically, the states are required to maintain a child support program that provides four basic services: (1) locating absent parents, (2) establishing paternity, (3) obtaining child support orders, and (4) enforcing support obligations owed by absent parents to their children and (if applicable) former spouse. These services are provided free of charge to AFDC recipients, who must assign their child support rights to the welfare agency and must agree to cooperate with the agency.2 For a nominal fee, these services must also be made available to custodial parents who are not eligible for AFDC,3 In the District, the fee is $5.00.4
The current inquiry comes from the Office of the Corporation Counsel, Civil Division, Child Support Section, which provides the legal assistance required for the child support enforcement program.5 The concern of the inquirer relates to the ethical obligations owed by its attorneys. Specifically, who is the client of a IV-D attorney, what obligations are owed to non-clients, and how can conflicts of interest be avoided? Answers to these questions require an understanding of the interactions among IV-D attorneys, the IV-D agency, and custodial parents (hereinafter referred to as "petitioners").
A IV-D attorney may be assigned to handle any of these types of cases. Each situation may raise difficult questions as to the duties and responsibilities of a IV-D attorney vis-à-vis his employer (the government), the petitioner, and the noncustodial parent. The types of complexities that may arise include, inter alia, (1) the possibility of one IV-D attorney representing two petitioners against the same noncustodial parent; (2) a IV-D attorney representing a former obligor against a former aid recipient after custody has switched; and (3) a IV-D attorney representing a current AFDC recipient who previously utilized the agency's services as a non-AFDC recipient and vice-versa.
Addressing the various potential ethical issues that may arise requires an answer to the question: "Who is the client?" Generally, the Rules of Professional Conduct do not define who is the client and rely on outside substantive law to determine whether a client-lawyer relationship exists.8 The one exception is Rule 1.6(i) which provides that the "client of the government lawyer is the agency that employs the lawyer unless expressly provided to the contrary by appropriate law, regulation, or order." Comment 36, however, recognizes that there may be situations in which government lawyers are assigned to provide counsel to individuals in such a way as to make it clear that an obligation of confidentiality runs directly to the individual.
Recognizing the various categories that can arise with IV-D actions, the Office of Corporation Counsel has attempted to answer "who is the client" in a policy statement entitled "Policy Statement No. 1":
The client is the petitioner in all non-AFDC cases. The client is the Department of Human Services in all AFDC cases. If a non-AFDC client becomes a recipient of public assistance, the client becomes the Department of Human Services; if an AFDC recipient is removed from public assistance, the Department of Human Services remains the client until all arrears are paid to the Department; after full payment, the custodian of the minor child/ren becomes the client.9
For purposes of this opinion, we accept the Corporation Counsel's definition.10
Given this definition, we must now address the various potential ethical issues that can arise. Since it is neither possible nor practical to anticipate and answer all conceivable ethical problems that can occur, this opinion will try to address the most common and most difficult.
Before we examine the various fact patterns that may develop, we note that it is our understanding that at present the Government maintains the Policy Statement simply as an internal document that is not discussed with or distributed to petitioners. In particular, the Government does not make clear to the petitioner whom it regards as the client. To the extent this is still the practice, we believe that it is a mistake; in particular, it does not assure compliance with the Rules of Professional Conduct. As the following discussion will indicate, the IV-D attorney must make sure that, in all situations, the petitioner knows whether or not she [or he] is being considered the client.11
A. Confidential Information
(1) AFDC Recipient
Under the Policy Statement, the client in this situation is the Department of Human Services. The problem is that the petitioner may not know this. Thus, it is possible that the petitioner, thinking that the IV-D Attorney is her attorney, may reveal confidences concerning other sources of income. She may believe that the confidence is protected by the attorney-client privilege. In reality, however, she is simply an unrepresented person.
What can and should a IV-D lawyer do to avoid misleading a petitioner? The attorney must make it clear that he or she represents the government and not the petitioner. Rule 4.3(a) requires that an attorney not give advice to an unrepresented person if that person's interests might conflict with the interests of the attorney's clients.12 Rule 4.3(b) requires that an attorney not state or imply to an unrepresented person that the attorney is disinterested even when the unrepresented person has no interest in conflict with the attorney's client.13 Furthermore, it requires that when a lawyer "knows or reasonably should know that the unrepresented person misunderstands the lawyer's role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding." Hence, even where an aid recipient or former recipient has no actual conflict with the AFDC agency, a IV-D attorney is still obliged to inform the petitioner that the attorney represents only the interests of the state, not the custodial parent.
Giving the Policy Statement to the petitioner is therefore essential. But it is only a minimum. The IV-D attorney must make sure the petitioner understands the potential consequences of not being the client. Failure to fully apprise the petitioner may require that the communication be treated as if a client-lawyer relationship existed.14
(2) Non-AFDC Petitioner
Here there should be no problem with confidential information. The Corporation Counsel says that in this context the petitioner is the client. Thus, there is attorney-client privilege. There is no question that the attorney must competently represent the petitioner and protect all confidences.
(3) Former AFDC Recipient—Now off AFDC but Still in Arrears
In this category, the Policy Statement says that the Department of Human Services is the client. Thus, the analysis here is the same as in the first category, an AFDC petitioner. The critical question is whether the petitioner understands that this lawyer is not her lawyer and any confidences she reveals may be disclosed.
B. Two Petitioners Seeking Support From Same Respondent15
(1) Both Are Non-AFDC Recipients
Here both petitioners are clients of Corporation Counsel and having one lawyer represent both may present a conflict under Rule 1.7. Rule 1.7(a), where applicable, is an absolute bar, prohibiting a lawyer from representing a client with respect to a position "if that position is adverse to a position taken in the same matter by another client represented with respect to that position taken by the same lawyer."16 It is not clear whether the actions of two petitioners against the same respondent are "the same matter." The fundamental questions in each proceeding—whether this respondent is the parent of each of the children, what are the financial needs of each child—are different. But there may well be common issues such as the financial resources available to the respondent. Moreover, given the practice of scheduling such matters jointly before the same Hearing Commissioner, it is certainly arguable that the two actions may appropriately be labeled "the same matter." If that is the case, Rule 1.7(a) prohibits one lawyer from representing two petitioners against the same respondent, if the representation requires the lawyer to take adverse positions for each petitioner.
But even if one concludes that the actions of the two petitioners against the same respondent are not "the same matter" and that the more discretionary rule of 1.7(b) is applicable, the committee believes that, in general, it will be very difficult for one lawyer to adequately represent two petitioners against the same respondent. Rule 1.7(b) is not an absolute bar.17 It is waivable provided that the conditions of 1.7(c) are met. Rule 1.7(c) provides:
A lawyer may represent a client with respect to a matter in the circumstances described in paragraph (b) above if: (1) each potentially affected client provides consent to such representation after full disclosure of the existence and nature of the possible conflict and the possible adverse consequences of such representation; and (2) the lawyer is able to comply with all other applicable rules with respect to such representation.
Current agency practice, once it becomes known that Corporation Counsel is representing two petitioners against the same respondent, is to inform both petitioners and to have them sign a form entitled "Conflict of Interest Waiver." See Appendix I. We do not believe this waiver is sufficient to satisfy the requirements of Rule 1.7(c). At a minimum, Corporation Counsel should inform the petitioners of the risk of having one lawyer represent two potentially adverse petitioners. In addition, Corporation Counsel should also inform the petitioners of the right, described below, to have another IV-D attorney from the Corporation Counsel as their representative. Finally, someone in the office of Corporation Counsel, such as a specially designated Ethics Advisor, should examine the situation to insure that if the petitioners do want to waive their rights, the lawyer can, in fact, comply with "all other applicable rules" if he or she represents two different petitioners against the same parent.
As suggested above, the Committee believes that it is unlikely that one attorney will be able to adequately represent two petitioners against the same respondent. As noted, the practice is to schedule all cases against one respondent together. If, in that hearing, it is necessary for the lawyer representing petitioner A to make arguments that are adverse to the interests of petitioner B, we believe that it will be virtually impossible for the lawyer to comply with Rule 1.7(c)'s requirement that the lawyer be able to comply with all applicable rules of representation. If, for example, petitioner A argues that the respondent (the alleged father) is not the father of petitioner B's child, we do not see how one lawyer can represent both petitioners "zealously and diligently."
But this does not mean that the petitioners must then be deprived of representation or forced to pay significant fees for legal services. As suggested supra, even if one attorney cannot adequately represent two different petitioners against the same parent, it is possible that another attorney in the Office of Corporation Counsel may be able to represent the second petitioner. The question is whether, under the Rules, the disqualification of one attorney vicariously disqualifies all the attorneys in the Office of Corporation Counsel.
Rule 1.10 provides for imputed disqualification in a variety of circumstances but Comment 1 says that the Rule does not apply to a government agency.18 Thus, when two petitioners cannot or do not waive their right to separate counsel, the comment suggests that they may be represented by two different attorneys in the same office. So long as Corporation Counsel makes sure that the second attorney does not talk to the first and does not have access to the first attorney's files, we believe there is nothing prohibiting the second attorney from representing the second petitioner.19
(2) Both Petitioners Are AFDC Recipients
In this category, the client is the Department, not either of the petitioners. Thus, while there may appear to be a conflict, in fact there is none and Corporation Counsel need do nothing special in this case.
(3) One Petitioner Is AFDC and the Other Is Not
Here the Corporation Counsel is representing the private petitioner in the one case and the Department of Human Services in the other. There is some danger that the lawyer will favor the Department over the petitioner. The applicable rule is 1.7(b) and that provides that the attorney may proceed if he or she gets the consent of both the petitioner and the Department. Rule 1.7(c) defines the nature of the consent required. If the non-AFDC petitioner does not consent, it may be possible under Rule 1.10, comment 1, for two different attorneys in the Office to represent the two petitioners, as discussed above.
C. Custody Switches—Former Obligor Obtains Custody of the Child and Seeks Child Support From Former Petitioner Who Had Had Custody but Has Lost It
(1) Both Are AFDC Recipients
In this category, the Department starts out as the client and remains the client even when custody of the child switches. Again, the critical issue is that the two people understand that (a) at no time is either one the client and (b) communications are not privileged.
(2) Neither Is an AFDC Recipient
In this situation, the first petitioner was the client. Once he or she lost custody and the other parent sought help, the other parent would become the client. In general, the Ethical Rules would give the first client the right to veto the representation of the second petitioner. Rule 1.9 provides that "a lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interest of the former client unless the former client consents after consultation." Thus, it would seem that, unless the first petitioner consents, the same attorney should not represent the other parent. But does that mean that all the attorneys in the Corporation Counsel are vicariously disqualified? As noted above, Rule 1.10 does not apply to government agencies. The rationale for the exemption seems to be that such disqualifications would cripple the government. Therefore, we believe the Rules permit Corporation Counsel to represent the second parent, provided no exchange of information occurs between the two attorneys.
(3) One Is an AFDC Recipient and the Other Is Not
If the initial petitioner was not on AFDC, then that petitioner was a client of the IV-D attorney. Once that person is no longer the custodial parent and a IV-D petitioner, and the other parent, on AFDC, becomes the IV-D petitioner, the Department becomes the client. In this situation, Rule 1.9 seems to give the first petitioner the right to veto the attorney's representation of the Department. Therefore in this situation as well as the previous one, we believe that, if the first petitioner does not agree to the attorney's representing the Department, the Rules require that Corporation Counsel provide the Department with another attorney.
If the initial petitioner was on AFDC, then he or she was not the client. Under Rule 1.9, there is no veto right for the first petitioner. Thus, it would appear that Corporation Counsel can represent the other parent, at least if the first petitioner was aware that she or he was never the client.
D. Department Seeking Money for Petitioner and Arrears for Itself
A potential conflict can arise here between the Department's interest in obtaining the arrears it is owed and the petitioner's interest in obtaining her money. Since the government does not get its money until the present needs of the petitioner are met.20 the government has an incentive to seek at least enough money to cover both the petitioner's needs and the arrearage. But it is possible that the government might not have an incentive to seek more than that. The Policy Statement provides that in this category, the Department of Human Services is the client. The problem, however, is that the petitioner may not realize that and may not understand that if she wants to seek additional moneys she may have to go outside the system. So long as she is apprised of that, however, the potential conflict seems to be avoided.
E. IV-D Attorney Representing a Current AFDC Recipient Who Previously Utilized the Agency's Services as a Non-AFDC Recipient and Vice-Versa.
When a petitioner goes from being an AFDC recipient to a non-AFDC petitioner with no arrears owed, the petitioner moves from not being a client to being a client. Movement in that direction seems to raise no new ethical dilemmas.
But movement in the other direction—from client to non-client—may present problems. Here the attorney moves from representing the petitioner to representing the government. This suggests the relevance of Rule 1.9. Does that mean that the petitioner would acquire the power to veto the attorney's representation of the government? It seems that Rule 1.9, read in conjunction with Rule 1.10, requires only that a new, different lawyer in the Corporation Counsel represent the government. If, however, the former client consents under Rule 1.9, the same IV-D lawyer can represent the government.
The foregoing is not an exhaustive discussion of all the conceivable ethical dilemmas that can arise. It is not possible to anticipate all such dilemmas. The discussion should, however, suggest the approach we believe appropriate for these issues.
The ethical questions that this program generates are difficult. There is ambiguity as to who is the client; moreover, the roles and relationships are complex and constantly changing. It would certainly be easier if every time a potential conflict arises, the petitioner or would-be petitioner would be told to hire another lawyer. But that is unrealistic. Hiring private practitioners is not a viable alternative for most IV-D petitioners. Thus, we must assess these issues with that reality in mind. At the same time, it is essential to realize that the petitioners are frequently not very sophisticated and care must be taken to make sure they are not misled or deceived. Not only must IV-D attorneys make sure that petitioners understand whether or not they are a client with client's privileges; they must also make sure that the petitioners understand what not being a client means.
To assist Corporation Counsel in its commendable effort to walk carefully through this thicket, the Ethics Committee has a suggestion. We believe that it would be helpful if the Office designated a person or persons, such as an Ethics Advisor, to be responsible for handling inquiries concerning ethics from both IV-D attorneys and petitioners. We believe that many of the potential problems discussed herein can be avoided and/or resolved in if someone within the Office of Corporation Counsel were responsible for 1) alerting lawyers to the ethical complexities that may arise; 2) advising individual lawyers who have questions about their obligations in a particular situation; 3) helping lawyers to provide adequate disclosure to avoid creating de facto lawyer-client relationships as discussed supra in section A(1); 4) screening cases initially to try to avoid having one lawyer represent two petitioners against the same respondent; 5) advising petitioners who are being asked whether they wish to waive their rights under 1.7(b) and insuring that different counsel are assigned in situations where the conditions of 1.7(c) cannot be met, many of the potential problems discussed herein can be avoided and/or resolved.
Inquiry No. 90-7-35
Adopted: June 15, 1993
1. 42 U.S.C. § 651 et seq. (1988).
2. The assignment is required by statute, 42 U.S.C. § 602(a)(26)(A). The statute also requires the custodial parent, after the assignment of support claims, to cooperate with the IV-D office in establishing and enforcing the claims. 42 U.S.C. § 602(a)(26)(B). Aid recipients are required “to cooperate with the State (i) in establishing the paternity of a child born out of wedlock with respect to whom aid is claimed, and (ii) in obtaining support payments for such applicant and for a child with respect to whom such aid is claimed, or in obtaining any other payments or property due such applicant or such child, unless (in either case) such applicant or recipient is found to have good cause for refusing to cooperate as determined by the State agency. . . .” Id.
3. 42 U.S.C. § 654(6) provides that the “child support or paternity determination services established . . . shall be made available to any individual not otherwise eligible for such services.”
4. Letter from Arlene Robinson to Thomas Flynn, June 28, 1990. Reconfirmed via phone conversation with Arlene Robinson on March 1, 1993.
5. The Child Support Section has recently been moved out of the Civil Division and relocated in the Family Service Division.
6. Roberts, Child Support Enforcement in 1989, 23 Clearinghouse Rev. 1101 (Jan. 1990).
7. 42 U.S.C. § 657(c); 45 C.F.R. § 302.51; 50 Fed. Reg. 19,642 (1985)
8. See Rule 1.6, comment .
9. Hereinafter “Policy Statement.” This Policy Statement is an internal document given to the attorneys but not to the petitioners. As we noted below, we believe the statement should be made available to all petitioners.
10. We note that it is consistent with the spare case law on point. See, e.g., Gibson v. Johnson, 35 Ore. Ap. 493 (1978).
11. Obviously a petitioner may be either male or female and, to be accurate, one should continuously use “he or she” in the discussion. However, in the interest of readability and in light of the fact that most petitioners are women, “she” will generally be used.
12. Rule 4.3(a) states that a lawyer shall not “give advice to the unrepresented person other than the advice to secure counsel, if the interests of such person are or have a reasonable possibility of being in conflict with the interests of the lawyer’s client.”
13. Rule 4.3(b) states that a lawyer shall not “state or imply to unrepresented persons whose interests are not in conflict with the interests of the lawyer’s client that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer’s role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding.”
14. See, e.g., A.B.A. Informal Opinion No. 89-1528 (June 5, 1989):
If a client-lawyer relationship exists, information received by the lawyer from the client is protected by Model Rule 1.6 and may not be disclosed to the Director of the IV-D office. If there is no client-lawyer relationship, the information may be disclosed unless the lawyer has failed to make reasonable efforts to correct any misunderstanding on the part of the custodial parent that a client-lawyer relationship existed, as required by Rule 4.3.
15. This was the type of problem that concerned one of the Hearing Commissioners and prompted the present inquiry. An Assistant Corporation Counsel was representing a non-AFDC petitioner and had refused to request an amount of support greater than the amount specified in the Child Support Guidelines. The Commissioner questioned whether the attorney was providing the zealous representation owed his client. Once convinced that the refusal was based on an assessment that the “law and facts did not permit a good faith argument for the [petitioner] to seek an order in excess of the Child Support Guidelines,” the inquiry before Bar Counsel was apparently dropped. Conversation with Acting Chief of the Child Support Section of the Office of Corporation Counsel, Sylvia Larrabee, June 1991. As a result of the inquiry, however, Ms. Robinson, then the Head of the Child Support Section, initiated her request to this committee.
16. Rule 1.7(a)
17. Rule 1.7(a)
Except as permitted by paragraph (c) below, a lawyer shall not represent a client with respect to a matter if: (1) a position to be taken by that client in that matter is adverse to a position taken or to be taken by another client in the same matter; (2) such representation will be or is likely to be adversely affected by representation of another client; (3) representation of another client will be or is likely to be adversely affected by such representation; or (4) the lawyer’s professional judgment on behalf of the client will be or reasonably may be adversely affected by the lawyer’s responsibility to or interests in a third party or the lawyer’s own financial, business, property, or personal interests.
18. Comment 1 provides: “For purposes of [these rules], the term ‘firm’ does not include a government agency or other government entity.” This comment was added because of a recommendation in the Report by the District of Columbia Bar Special Committee on Government Lawyers and the Model Rules of Professional Conduct, known as the “Sims Report.” The committee “concluded that government agencies should be specifically excluded from the definition of ‘firm’ in the Comment, because of the potentially harsh result which would occur if all lawyers in a government lawyer’s agency were disqualified under Rule 1.10.” Sims Report, at 23.
19. We leave it to Corporation Counsel to decide how to assign attorneys in these cases. In making this decision, we recommend that Corporation Counsel consider the working and supervisory relationships within the sections in the Family Services Division which may preclude assigning two attorneys from the same section. These include the small size of the section and the likelihood that confidential information might be shared with a common supervisor
20. 45 C.F.R. § 302.51(f)(4) (1989).