90-18: Conflict of Interest; Professional Independence of Lawyer

11/1990

Contractual provisions between Department of Economic Security and County Attorney who provides representation on child support and paternity matters to the DES may violate his professional duty to exercise independent judgment, depending on whether the DES is his client.

FACTS

The Arizona Department of Economic Security (DES) has proposed to contract with County Attorneys for the provision of services by the County Attorneys' offices on behalf of persons in need of legal services in child support or paternity matters. The Proposed contracts provide, in pertinent part, that the County Attorneys will undertake court proceedings to obtain child support payments or to establish paternity; and specify in detail the statutory procedure to be used for the establishment of paternity by consent, and the use of DNA testing in cases of disputed paternity. A copy of the "Service Tasks of the County Attorney" section of the proposed contract is attached as Exhibit 1 hereto. A County Attorney who is proposing to contract with DES feels that, in certain cases, the use of procedural methods other than those spelled out in the contract would better serve the person ultimately in need of the legal services.

QUESTION

May a County Attorney, with ethical propriety, contractually limit the use of available procedural alternatives if the attorney believes that a violation of the professional duty to exercise independent judgment on behalf of the person in need of egal services would result?

ETHICAL RULES INVOLVED

ER 1.1. Competence

A lawyer shall provide competent representation to a client....

ER 1.2. Scope of Representation

(a) A lawyer shall abide by a client's decisions concerning the objectives of representation,... and shall consult with the client as to the means by which they are to be pursued....

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ER 1.3. Diligence

A lawyer shall act with reasonable diligence and promptness in representing a client.

ER 1.7. Conflict of Interest: General Rule

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(b) A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer's responsibilities to...a third person...unless:

(1) the lawyer reasonably believes the representation will not be adversely affected; and

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ER 1.8. Conflict of Interest: Prohibited Transactions

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(f) A lawyer shall not accept compensation for representing a client from one other than the client unless:

(1) the client consents after consultation;

(2) there is no interference with the lawyer's independence of professional judgment or with the client-lawyer relationship; and

(3) information relating to representation of a client is protected as required by ER 1.6.

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ER 5.4. Professional Independence of a Lawyer

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(c) A lawyer shall not permit a person who recommends, employs, or pays the lawyer to render legal services for another to direct or regulate the lawyer's professional judgment in rendering such legal services.

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OPINION

For the purpose of answering the present inquiry, the committee assumes that the inquiring attorney's client in the child support and paternity matters is the person actually in need of the legal services, rather than the county. Of course, if the county were the inquiring attorney's client, he could agree with the county, after consultation, to limit the scope of his representation, according to ER 1.2(c).

However, where the inquiring attorney's client is the person in need of the legal services, the limitation or direction by contract of an attorney's use of procedural remedies appears to be directly prohibited by ER 5.4(c), supra, if prejudice to the epresentation of the client would result. There are some dicta contained in our Opinion No. 76-7 (June 3, 1976) to the effect that an insurer could direct a retained attorney to notice a change of judge without telling the ultimate insured client of this fact. However, the question of prejudice to the client was not squarely addressed in that Opinion, and the question was decided under the Code of Professional Responsibility, formerly in effect in this state. Therefore, that Opinion does not appear to control the instant situation.

A recent modification of the Statement of Jurisdictional Policies of this committee now permits us to rule upon mixed questions of law and ethics (see para. 6(a)). However, this Opinion will not attempt to comment upon the assertions in the nstant inquiry regarding the substantive aspects of child support or paternity proceedings. It suffices, for purposes of this Opinion, that the inquiring attorney believes that there are other and better procedural remedies (than those called for in the proposed contract) available in the arsenal of alternatives which could be utilized to represent the child support or paternity clients.

Here, the inquiring attorney feels that, to require the use of certain remedies would create a definite risk of harm to the client's position, either through delay in receipt of child support benefits or the creation of uncertainty in a paternity determination. Under these circumstances, the attorney's ethical duty, in light of the above-cited Ethical Rules, is clear. The attorney has an obligation to represent the client to the best of the attorney's ability, utilizing any lawful means available to ensure that the client receives the child support arrearages which are due, or that any determination of paternity be as unassailable as possible. To the extent that the attorney believes that the proposed contractual provisions will either prevent the attorney from discharging these obligations, or will direct the attorney to do so in a particular manner not beneficial to the client, the attorney has a duty to refrain from entering into such a contract. By the same token, if an attorney reviews the procedures specified in the proposed contract and feels that they would not result in prejudice to the representation of the persons in need of legal services, then there would be no ethical prohibition against entering into the contract.

EXHIBIT 1

3.0 SERVICE TASKS OF THE COUNTY ATTORNEY

A. Establishment of cases and maintenance of case records.

1. Make applications for child support services readily accessible to the public.

2. Provide or mail applications on the day each individual request an application for services if requested in person, within five (5) working days, if requested by phone or mail. Along with the application the County Attorney shall furnish information describing available services, the individual's rights and responsibilities, and the State's tees, cost recovery and distribution policies.

3. Accept an application as filed on the day it is received.

4. For all IV-D cases, open a case upon receipt of a referral or application for services by establishing a case record which will be supplemented with all information and documents pertaining to the case, as well as all relevant facts, dates, actions taken, contacts made and results in a case.

5. Within twenty (20) working days of opening the case, assess the case and determine which of the following actions is necessary:

a. solicit or verify necessary and relevant information from the custodial parent and other relevant sources;

b. Access all appropriate State and local automated sources to determine the absent parent's address, employer, income and assets;

c. If adequate location information is available to proceed with the case, initiate appropriate service; or

d. If adequate location information is not available to proceed with the case, request additional information or refer the case for further location attempts.

B. Location of absent parents. For each intrastate IV-D case, the County Attorney shall attempt to locate the absent parent or sources of income and/or assets when their location is unknown. In these attempts to locate, the County Attorney shall:

1. Within seventy-five (75) calendar days of determining location is necessary, access all appropriate location sources;

2. Refer each case for location services after determining that an absent parent's location or location of sources of income and/or assets becomes unknown;

3. Use appropriate local sources such as:

a. information maintained by the agencies administering or maintaining records of public assistance, general assistance, feed stamps, social services, wage and employment: unemployment insurance, income taxation, driver's licenses, vehicle registration, and criminal records;

b. relatives and friends of the absent parent;

c. current or past employers;

d. the local telephone company;

e. the U.S. Postal Service;

f. financial references;

g. unions;

h. fraternal organizations;

i. police, parole, and probation records.

4. Establish working relationships with all appropriate local agencies in order to use local locate resources effectively;

5. Transmit appropriate cases at least annually, for which State and local location efforts have been unsuccessful to the Federal Parent Locator Service (FPLS);

6. Repeat location attempts quarterly or immediately upon receipt of new information, whichever occurs sooner, in each case in which previous attempts to locate absent parents or sources of income and/or assets have failed, but adequate information exists to meet requirements for submittal for location;

C. Provision of services in interstate IV-D cases. In each IV-D interstate case, the County Attorney shall:

1. In each initiating case:

a. Use the long-arm statute to establish paternity whenever appropriate;

b. Unless paternity is being established Pursuant to Paragraph C(l)(a), within twenty (20) calendar days of determining that the absent parent is in another state refer each case to the responding State's interstate central registry for action;

c. Provide the IV-D agency in the responding State sufficient, accurate information to act on the case along with any necessary documentation and either the federally approved interstate forms or computer-generated replicas of those forms;

d. Within thirty (30) calendar days of receipt of a request for additional information by the responding IV-D agency, provide the requested information or notification of when the information will be provided;

e. Notify the responding IV-D agency within ten (10) working days of receipt of new information on a case; and

f. If ninety (90) calendar days have elapsed since the last contact with the responding IV-D agency, request a status update on each case in which payment is not received.

2. In each responding case:

a. Establish a case and maintain case records as provided in Paragraph A ;

b. Within ninety (90) calendar days of receipt of an Interstate IV-D case from the interstate central registry:

(i) Provide location services in accordance with Paragraph B if the request is for location services or the form or documentation does not include adequate location information on the absent parent:

(ii) If unable to proceed with the case because of inadequate documentation, notify the initiating IVD agency of the necessary additions or corrections to the form or documentation.

(iii) If the documentation received with a case is inadequate and cannot be remedied without the assistance of the initiating State, process the interstate IV-D case to the extent possible pending necessary action by the initiating State.

c. Within ten (10) working days of locating the absent parent in a different jurisdiction within the State, forward the form and documentation to the appropriate jurisdiction and notify the initiating State and central registry of the action.

d. Within ten (10) working days of locating the absent parent in a different State:

(i) Return the form and documentation, including the new location, to the initiating State, or, if directed by the initiating State, forward the form and documentation to the central registry in the State where the absent parent has been located; and

(ii) Notify the central registry where the case has been sent.

e. Provide any necessary services as it would in intrastate IV-D cases by:

(i) Establishing paternity and attempting to obtain a judgment for costs should paternity be established in accordance with Paragraph E;

(ii) Establishing a child support obligation, using appropriate remedies including URESA, all in accordance with Paragraph D;

(iii) Enforcing cases referred by another State, using appropriate remedies including URESA, all in accordance with Paragraph F; and

f. Provide timely notice to the initiating IV-D agency in advance of any formal hearings which may result in establishment or modification of an order.

g. Notify the initiating IV-D agency within ten (10) working days of receipt of new information on a case.

h. Notify the Arizona central registry when a case is closed.

D. Establishment of support obligations. In each IV-D case, the County Attorney shall:

1. When necessary, establish paternity;

2. Establish a support order or file a petition for establishment of a support order with the court within ninety (90) calendar days of locating an absent parent or establishing paternity; or

3. If the court dismisses a petition for a support order without prejudice, examine the reasons for dismissal, determine when it would be appropriate to seek an order in the future, and seek a support order at that time.

E. Establishment of paternity. In each IV-D case, the County Attorney shall:

1. Within one year of locating the alleged father:

a. Initially attempt to establish paternity using the consent process set forth in A.R.S. §12-852 and file consent with the Clerk of the Court; and

b. In the event the consent process proves unsuccessful, paternity may then be established by court order or other legal process; or

c. Exclude the alleged father as a result of genetic tests.

2. Notwithstanding the fact that A.R.S. §12-852 may be amended during or prior to this contract term to provide resolution of issue by genetic testing methods other than DNA testing, in each IV-D case for the consent process, the County Attorney shall use DNA testing for resolution of issue.

3. In any case where an alleged father is excluded but more than one alleged father has been identified, attempt to establish paternity as set forth in Paragraph E (1) until paternity is established or all the alleged fathers are excluded.

4. Not attempt to establish paternity in any case involving incest or forcible rape, or in which legal proceedings for adoption are pending if the County Attorney determines that it would not be in the best interest of the child to establish paternity.

F. Medical support. In each AFDC cases and upon request of the non-AFDC applicant, the County Attorney shall:

1. include medical support in each new or modified support order where coverage is available to the absent parent at a reasonable cost;

2. ensure that the absent parent secures the health insurance coverage required by the support order;

3. In AFDC cases, provide the AFDC recipient's name, Social Security Number, health insurance policy name and number, and the names of the persons covered by such policy information to CSEA within fifteen (15) days of receipt of information;

4. In non-AFDC cases where medical service has been requested, provide the name and Social Security Number of the applicant, the name, home address and Social Security Number of the absent parent, the name and Social Security Number of the child(ren), the home address of absent parent, the name and address of absent parent's place of employment, the health insurance policy name and number and the names of persons covered by the policy to CSEA within fifteen (15) days of receipt of information.

G. Enforcement of support obligations. In each IV-D case in which the obligation to support and the amount of the obligation has been established, the County Attorney shall:

1. Monitor compliance with the support obligation;

2. In each case in which the absent parent has failed to make payments in an amount equal to the support payable for one month enforce the obligation by:

a. Initiate a wage assignment;

b. Within thirty (30) calendar days of identifying a delinquency or other support-related noncompliance with the order, initiate any other appropriate enforcement technique such as contempt proceedings, garnishments, executions, debtor's exams, and criminal charges.

3. Submit once a year for State income tax refund offset and for Federal income tax refund offset each case that meet the certification requirements.

4. If enforcement attempts are unsuccessful, examine the reasons the attempts have been unsuccessful, determine when it would be appropriate to pursue enforcement quarterly, and initiate appropriate enforcement techniques quarterly.

H. State's interest. When an assignment of rights has been signed, the County Attorney shall intervene in divorce and probate proceedings to protect the State's interest in establishing and enforcing child support orders.

I. Case closure. In each IV-D case, the County Attorney shall follow the case closure policy approved by CSEA.

J. Failure of APDC recipient to cooperate. The County Attorney shall notify the Department within five (5) days of any failure by an APDC recipient to cooperate.

K. Refusal of cases. The County Attorney shall notify the Department in writing of the County Attorney's refusal to accept any Title IV-D case referred by CSEA and shall provide a copy of the case file to the Department within five days of the refusal.

L. Conflict of interest. The County Attorney shall represent the State's interest in establishing and enforcing child support orders. The County Attorney shall notify the Office of the Attorney General by telephone immediately if the County Attorney becomes aware of a potential conflict of interest that prevents the County Attorney from proceeding.

M. Appeal. If the County Attorney is of the opinion that a paternity, support enforcement, or any other order is erroneous and presents a question of law or issue warranting an appeal, he shall;

1. Contact the Office of the Attorney General within three (3) days after the order is entered or an appeal is perfected by opposing counsel.

2. Provide the Office of the Attorney General with sufficient case information and documentation to enable the Office of the Attorney General to determine whether an appeal should be perfected and if so, by whom. The County Attorney shall provide the Office of the Attorney General with a copy of any pleading five (5) days prior to filing.

N. Statewide Caseload Index System. The County Attorney shall lead, maintain, and use the Child Support Enforcement Statewide Caseload Index System (SCI).

O. Reporting to Credit Reporting Agencies. The County Attorney shall make available upon request, information regarding the amount of overdue support owed by an absent parent if that amount exceeds one thousand dollars ($1,000) Prior to such release of information, the County Attorney shall provide advance notice on the proposed release of information to the absent parent. Notice must include the methods available to the absent parent to contest the accuracy of information.

P. Continuing Legal Education (CLE). The County Attorney, or Deputy in charge of IV-D Child Support Enforcement shall participate in a continuing legal education program approved or provided by CSEA. Each Title IV-D attorney shall complete five (5) hours of continuing education related to child support enforcement during the contract term.

4.0 SERVICE TASKS OF THE COUNTY SHERIFF

A. Duties of the Sheriff. The Sheriff shall provide for the Department service of process and civil arrest warrant services.

B. Time and Manner. The Sheriff shall service process or notices as well as execute civil arrest warrants, in the manner prescribed by law.

Formal Opinions of the Committee on the Rules of Professional Conduct are advisory in nature only and are not binding in any disciplinary or other legal proceedings.