81-F-12 - Vacated*

 

*Vacated by the Board of Professional Responsibility on September 11, 2015 due to changes in the law or rules.

FORMAL ETHICS OPINION 81-F-12

 

An inquiry has been made concerning the propriety of an attorney representing the alleged father in the defense of a paternity suit when the attorney is by contract assigned such cases to prosecute from time to time.

The Juvenile Court of a metropolitan area has contracted with several attorneys to prosecute disputed paternity cases. This particular court has developed a paternity program which has served as a model for other courts. The mother of an illegitimate child, who collects financial assistance from the Social Security Administration administered through the Tennessee Department of Human Services, assigns her right to recover support from the putative father to the state agency and the Juvenile Court implementing the payments. The Juvenile Court, acting in this administrative function, then contracts with various attorneys to prosecute the disputed paternity cases to recover the funds. The contract attorneys represent the mother/child/government interest. The indigent putative father defendant is left without counsel.

The Juvenile Court is now concerned about the rights of the indigent putative father defendants and has requested the contract attorneys to accept appointments by the Court to defend certain cases pro bono.

There are no inherent conflict of interests which would preclude acceptance of such cases per se. However, the Ethical Considerations and Disciplinary Rules of Canon 5 of the Code of Professional Responsibility provide that an attorney shall exercise independent professional judgment on behalf of a client. The professional judgment shall be exercised solely for the benefit of the client and free of compromising influences and loyalties. The interests of other clients should not be permitted to dilute the loyalty to any client. The implications of the common representation, including potential conflicts in the area of client confidences, if any, should be fully explained to the putative father and the state agency in each instance. Each should be given the opportunity to evaluate the need of representation free of any potential conflicts. The contract attorneys may subsequently represent the putative father upon the written consent of both the putative father and the state agency. All doubts should be resolved against the propriety of accepting employment because if the attorney accepts employment and a conflict is manifested, withdrawal of representation may likely result in undue hardship. In order to reduce the possibility of undetected conflicts, each contract attorney should keep accurate records and indices with cross references readily available and they should be thoroughly checked in each instance for potential conflicts.

This 10th day of July, 1981.

ETHICS COMMITTEE:

Randall Burcham
W. H. Lassiter
George E. Morrow

APPROVED AND ADOPTED BY THE BOARD