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

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 
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