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