90-F-123 - DHS attorneys' child support services

 

BOARD OF PROFESSIONAL RESPONSIBILITY OF THE SUPREME COURT OF TENNESSEE

FORMAL ETHICS OPINION 90-F-123

 

Inquiry is made by the General Counsel for the Tennessee Department of Human Services (DHS) concerning the potential ethical conflicts and ethical responsibilities of attorneys employed in programs administered by DHS pursuant to Title IV-D of the Federal Social Security Act.

State governments may obtain substantial federal funding, pursuant to the Federal Social Security Act, to provide for an Aid to Families with Dependent Children (AFDC) Program, which is the cash grant program sometimes referred to as "welfare." Each state child support program, as a condition of receipt of the federal funding, is required to provide four basic services: (i) locating absent parents, (ii) establishing paternity, (iii) establishing support, and (iv) enforcing support. These services are required and are provided to AFDC custodial parents or recipients who, by receipt of public assistance and pursuant to federal and state law, assign their support claims to the state. The assignment includes all rights to support that have accrued when the application is made and continues during the period of eligibility for assistance. Child support services are automatically continued for persons whose AFDC cases are closed (continuation cases) unless the individuals request termination of the services. In addition, the IV-D Programs are also required to provide the four basic child support services, cited hereinabove, to anyone not receiving AFDC assistance, if that person makes application for any of the four basic services (non-AFDC cases). Efforts to seek collection of amounts owed to the state that accrued and were assigned in non-AFDC and continuation cases may be joined with efforts to collect current support owed to the custodial parent. There are no fees charged by the IV-D agency to the recipients.

In Tennessee DHS administers the AFDC and the child support or IV-D programs. Child support services are provided by DHS primarily through contract agreements. In a major portion of the state DHS contracts with District Attorneys General. However, DHS also contracts with three county juvenile courts in three of the large urban areas, and with a private law firm in one judicial district. In other judicial districts these services are provided by DHS staff attorneys.

Pursuant to federal law part of the compensation received by IV-D contractors is based on a percentage of the child support collected by the contractor (42 U.S.C. Section 658). These funds are called incentive payments and the IV-D programs generally receive increasing amounts of payments as the amounts of child support collections increase.

The interest of the state and the AFDC recipient or IV-D applicant are frequently the same.  There are times that the interests may be divergent or conflicting; i.e., when an arrearage is owed to the state and also to the party on whose behalf IV-D services are rendered. Usually those individuals are the custodial parents of the children for whose support is being sought.

The opposing party is usually the noncustodial parent from whom support is being sought.

Beginning October 13, 1990, DHS is required by Section 103 of the Federal Family Support Act of 1988 [P.L. 100-485; 42 U.S.C. Section 666(a)(10)(A)] to have a plan in place for the review and modification of child support orders in IV-D cases upon the request of either parent. Therefore IV-D programs will be required to initiate proceedings for downward modifications of child support at the request of and on behalf of an individual who had previously been an opposing party in cases that had previously established the support. The question of conflicting, diverse and differing interests therefore arises.

T.C.A. Section 71-3-124 defines the nature of the client-attorney relationship in federal and state aided child support services by providing that the attorneys working in the Title IV-D child support programs have an attorney-client relationship only with the DHS and not with the party seeking assistance and/or services. The statute further provides that such attorneys have an affirmative duty to notify the individuals applying for services or AFDC recipients that the legal services provided by the enforcement program are solely on behalf of the state and that no client attorney relationship exists between the attorney and the applicant or recipient and that there is no privilege of confidentiality to the individual.

The statute is in keeping with the Board's Formal Ethics Opinion 83-F-55 which states that there is no client-attorney relationship between district attorneys, who provide child support enforcement services, and the recipient of a public assistance grant. Accordingly, all attorneys employed in programs administered by the DHS pursuant to Title IV-D of the Federal Social Security Act, are advocates of the state and never, at any time, have a client-attorney relationship with a recipient of funds, services and/or grants; provided, there is a fully informed actual and written acknowledgement by the recipient that no such relationship exists.

The Board's previous Ethics Opinion 83-F-55 coupled with the legislation referred to herein, T.C.A. 71-3-124, identifies all attorneys employed by the DHS in administering the Title IV-D programs as government attorneys. Ethical Consideration 7-14 provides guidance for such attorneys as follows:

EC 7-14 A government lawyer who has discretionary power relative to litigation should refrain from instituting or continuing litigation that is obviously unfair. A government lawyer not having such discretionary power who believes there is lack of merit in a controversy submitted ...should so advise (their) superiors and recommend the avoidance of unfair litigation. A government lawyer ...has the responsibility to seek justice and to develop a full and fair record, and...should not use (their) position or the economic power of the government to harass parties or to bring about unjust settlements or results.

Formal Ethics Opinion 83-F-55 cited hereinabove reasoned that,

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.

The attorneys employed by DHS in administering child support services and Title IV-D services represent the state and are obliged to seek justice in the administration of the programs and benefits. Accordingly there is no conflicting, diverse or differing interests in seeking downward modifications of child support; and, in addition there may be an affirmative obligation to do so in order to seek justice. Also, there is no impropriety in the same attorney seeking support or modification of support for one parent after a change of custody and having previously participated in establishing support for the other parent; nor is there any impropriety in the same attorney seeking support for several individuals from the same person, i.e. support being sought from a father who has several children by different women.

This 14th day of September, 1990.

ETHICS COMMITTEE:

Kitty G. Grubb
Michael E. Callaway
C. Richard Dietzen

APPROVED AND ADOPTED BY THE BOARD