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.
W. H. Lassiter
George E. Morrow
APPROVED AND ADOPTED BY THE BOARD