91-21: Conflict of Interest

6/1991

If an attorney-client relationship has been established between County Attorney and a custodial parent in connection with efforts to obtain child support payments, the County Attorney may not thereafter assist non-custodial parents in actions for downward modification of support payments.

FACTS

The inquiring attorney is the supervising attorney for the Child Support Services Division of the Pima County Attorney's Office. Pursuant to a contract between the State and the federal government, governed by the Social Security Act (42 U. S. C. § § 651 etseq.), the lawyers employed in this Division assist custodial parents in their efforts to obtain child support payments from non-custodial parents.

Within the past two years, in response to expressed concerns regarding whether an attorney-client relationship is established between the custodial parent and the County Attorney in connection with non-support proceedings, the Division has expressly informed the custodial parents that the State of Arizona is its client rather than the custodial parent. This pronouncement is supported by such a recitation on all forms and applications which the Division gives to the custodial parents.

Commencing October 15, 1990, after the adoption of a State plan demanded by the new federal law, the County Attorney’s Office is required to comply with a new mandate of the Social Security Act requiring that the Division assist non-custodial parents in their requests for the modification of support orders.^[1]

The inquiring attorney now perceives significant potential for a conflict of interest arising where the Division’s attorneys have previously assisted custodial parents in proceedings

QUESTIONS

The inquiring attorney, accordingly, poses the following questions:

1. Whether the Division may ethically assist a non-custodial parent in preparing paperwork for a downward modification, and/or go to court and argue for a downward modification, in cases where the Division has previously assisted the custodial parent in establishing and enforcing the original support order.

2. Whether the Division may properly furnish information in its file concerning the income of the custodial parent to the non-custodial parent, if the information was obtained from the custodial parent or, alternatively, from an independent source.

3. If the Division assists the non-custodial parent in filling out the paperwork, whether it may then properly argue against modification of the support order in a court proceeding on the basis that such a modification is not justified.

ETHICAL RULES INVOLVED

ER 1.9. Conflict of Interest: Former Client

A lawyer who has formerly represented a client in a matter shall not thereafter:

(a) represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client consents after consultation; or

(b) use information relating to the representation to the disadvantage of the former client except as ER 1.6 would permit with respect to a client or when the information has become generally known.

ER 4.3 Dealing with Unrepresented Person

In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer’s role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding.

RELEVANT PRIOR ARIZONA OPINIONS

Opinions Nos. 71-36 (November 26, 1971), 74-22 (August 24, 1974), 81-29 (September 17, 1981) and 89-04 (May 3, 1989).

OPINION

The answers to these questions are dependent upon whether an attorney-client relationship has been established between the County Attorney (or Deputy County Attorney of the Child Support Services Division) and the custodial parent during their dealings involving the child support proceedings against the non-custodial parent.

Principles of substantive law external to the Ethical Rules determine whether an attorney-client relationship was created and exists. In Arizona, the appropriate test for determining whether an attorney-client relationship exists is a "subjective" one where "the court looks to such things as the nature of the services rendered, the circumstances under which the individual divulges confidences, .....and '[t]he client’s belief that he is consulting a lawyer in that capacity and his manifested intention to seek professional legal advice.'" (citations omitted) Fuolke v. Knuck, 162 Ariz. 517, 520, 784 P. 2d 723, 726 (App. 1989). See also Alexander v. Superior Court, 141 Ariz. 157, 162, 685 P.2d 1309, 1314 (1984) where the Supreme Court of Arizona quoted approvingly from Trinity Ambulance Service, Inc. v. G&L Ambulance Services. Inc., 578 F. Supp. 1280, 1283 (D. Conn. 1984):

“An attorney-client relationship is said to exist when the party divulging confidences and secrets to an attorney believes that he is approaching the attorney in a professional capacity with the intent to secure legal advice.”

Certainly, representing the non-custodial parent in a non-support proceeding is "substantially related" to the previous representation of the custodial parent. See ER 1.9(a). Additionally, if it is established that an attorney-client relationship has been created, for the attorney to represent the non-custodial parent for modification of the original support order would create a situation in which the interests of the custodial and noncustodial parents are materially adverse to one another. Id. In In re Ockrassa, 165 Ariz. 576, 799 P.2d 1350 ( 1990), the Court interpreted ER 1.9 as prohibiting a prosecutor (Mr. Ockrassa) from representing the State against a defendant where he had previously represented the defendant in connection with crimes relevant to the prosecution proposed to be conducted by Ockrassa against the defendant. In interpreting the previously-applicable Code cf Professional Responsibility, this committee has previously recognized a presumption of receipt of client confidences under similar circumstances. We noted that "if the attorney switches sides in the same case or a substantially related case, it is presumed that the former client communicated confidential information to the attorney." Opinion No. 81-29 at 4 (September 17, 1981). Therefore, we believe that, if an attorney-client relationship was created between the Child Support Division of the County Attorney’s Office and the custodial parent in child support proceedings, the Division may not subsequently represent the non-custodial parent in proceedings to modify the child support order.

As to those matters occurring before the County Attorney initiated procedures designed to inform the custodial parents that the client was the State of Arizona rather than the custodial parent, there is a strong probability that a court reviewing the facts would conclude, based upon Arizona law and ethics opinions, that an attorney-client relationship had been established. As to those matters occurring after the initiation of these procedures, whether an attorney-client relationship was established will depend upon whether, despite the forms and procedures, the custodial parent is dealt with in a manner which would cause him or her to conclude that he or she was approaching the attorney "in a professional capacity with the intent to secure legal advice." Alexander v. Superior Court, 141 Ariz. At 162, 685 P.2d at 1314.

However, if it is determined, based upon the individual facts of each case, that an attorney-client relationship has not been created, then the County Attorney must make reasonable efforts to ensure that the custodial and non-custodial parents, who seek assistance from the County Attorney’s Child Support Services Division, understand clearly the relationship of the County Attorney’s Office to them in its undertaking to obtain support payments or to modify the order on behalf of the parents. See ER 4.3, which requires that, when lawyers deal with unrepresented parties, they must ensure that there are no misunderstandings on the part of the unrepresented parties regarding the adverse interest of the lawyer, if any exists.

In conclusion, we respond to the inquiring attorney’s three questions as follows: Assuming that an attorney-client relationship has been created between the custodial parent and the County Attorney’s Office: (1) the Child Support Division may not ethically argue for downward modification on behalf of the non-custodial parent in subsequent proceedings; (2) the Division may not furnish information concerning the representation of the custodial parent to the non-custodial parent; and (3) the Division may not argue against child support modification once it has assisted the non-custodial parent in filling out the paperwork. Whether an attorney-client relationship has been created between the County Attorney’s Office and the custodial parent is a question of law upon which this committee may not render a definitive answer. However, if the inquiring attorney determines, as a matter of law, that no attorney-client relationship has been created, he must treat both the custodial and the non-custodial parents as unrepresented persons for purposes of ER 4.3.

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.

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[1] The 1988 Family Support Act (42 U.S.C. 651 et seq.) states in pertinent part:

Section 466(a) of such Act is amended by inserting after paragraph (9) the following new paragraph:

“(10) (A) Procedures to ensure that, beginning 2 years after the date of the enactment of this paragraph, if the State determines (pursuant to a plan indicating how and when child support orders in effect in the State are to be periodically reviewed and adjusted) that a child support order being enforced under this part should be reviewed, the State must, at the request of either parent subject to the order, or of a State child support enforcement agency, initiate a review of such order, and adjust such order, as appropriate, in accordance with the guidelines established pursuant to section 467(a)." (emphasis added) instituted against non-custodial parents, and now those noncustodial parents wish the Division to assist them in their efforts to reduce support payments or modify support orders.