83-F-55 - District Attorney

 

BOARD OF PROFESSIONAL RESPONSIBILITY OF THE SUPREME COURT OF TENNESSEE

FORMAL ETHICS OPINION 83-F-55


Inquiry is made concerning whether or not an attorney-client relationship exists between district attorneys, who provide child support enforcement services, and the recipient of a public assistance grant; and, the propriety of the district attorney prosecuting a recipient for welfare fraud after having provided child support enforcement services.

Title IV-D of the Federal Social Security Act, 42 U.S.C. 601 et seq. requires each state to establish and maintain a child support enforcement program. The Tennessee Department of Human Services (D.H.S.) is the state agency responsible for adopting and implementing a plan to conform to the requirements of the Social Security Act. D.H.S. has contracted with the District Attorney to provide certain services including location of absent parents, filing petitions to establish paternity, proceeding in juvenile court under the criminal non-support statutes, filing interstate or inter-county reciprocal enforcement of support petitions and enforcing support orders in existing divorce cases.

In addition to the above, D.H.S. also contracts with the District Attorney to provide support collection services for individuals who are not public assistance recipients. These individuals assign to D.H.S. the right to collect and disburse such support payments.

The recipient of Title IV-D public financial AFDC assistance assigns the right to receive and collect all support payments to D.H.S. pursuant to T.C.A. 14-8-124. The assignment is for such terms as public assistance is paid to the recipient and for the amount up to the total public assistance paid to the recipient. Actions to collect such support may be brought either in the name of D.H.S. or in the name of the recipient to recover support payments.

There are instances where support payments are erroneously made to and retained by the recipient which should belong to D.H.S. There are also instances where the recipient has accepted payments from the responsible parent and unlawfully receives public assistance. Inquiry is, therefore, made as to the propriety of the District Attorneys bringing actions against the recipient to recover the funds and/or prosecuting the recipient for welfare fraud.

There is no attorney-client relationship between District Attorneys who provide child support enforcement services and the recipient of a public assistance grant. The District Attorneys are advocates of the state and never, at any time, have an attorney-client relationship with any individual. Prosecutors are not mere civil litigants but represent the state and they cannot assume the standard of an attorney appearing on behalf of an individual client as a guide for their conduct.

There is no impropriety in the District Attorney prosecuting a recipient for welfare fraud after having provided child support enforcement services, just as there is no impropriety in prosecuting the victim of a crime for perjury after having prosecuted the original case.

This 24th day of August , 1983.

ETHICS COMMITTEE:

Edwin C. Townsend
W. J. Flippin
Henry H. Hancock

APPROVED AND ADOPTED BY THE BOARD