1996-02

DHR and Title IV-D service recipients–attorney represents agency and has no attorney-client relationship with service recipients (Modifies RO-87-57)

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DHR and Title IV-D service recipients–attorney represents agency and has no attorney-client relationship with service recipients (Modifies RO-87-57)

QUESTION:

“I am writing on behalf of the Alabama Department of Human
Resources (hereinafter ‘DHR’) to request a formal Ethics
Opinion from the Alabama State Bar regarding whether DHR
child support policy, established to bring the State agency
into compliance with certain federal laws and regulations
governing the operation of the State’s IV-D child support
program, creates any ethical problems for attorneys
handling
child support cases for DHR through its IV-D program. In
particular, the agency is requesting an opinion regarding
whether this policy contains any potential conflicts of
interest which would prohibit its attorneys from handling
certain cases DHR refers for legal action.

The Department of Human Resources is the State agency in
Alabama charged with the establishment, modification, and
enforcement of support obligations as provided for and
required by Title IV-D of the Social Security Act (42
U.S.C.
§651 et seq.). As such, the agency must provide support
services to all eligible applicants as authorized or
mandated by applicable federal and/or State law and
regulations. Where necessary and appropriate, DHR
establishes agency policy to ensure that proper State and
federal laws and procedures are followed at each level of
agency responsibility in the provision of support
services. By necessity, this policy frequently impacts the
provision of legal services in DHR child support cases.

The establishment or enforcement of child support usually
requires legal action in Alabama. In these cases, DHR is
represented by district attorneys or private attorneys
authorized to represent the State of Alabama. DHR staff
attorneys are utilized in Jefferson and Mobile counties.
The
parents or guardians are usually separate parties to the
action.

It has long been the position of the State Bar and of DHR
that no attorney-client relationship exists between the IV-
D
service recipient and the attorney handling IV-D cases for
DHR, provided the service recipient has assigned his or her
rights of support to DHR, either by operation of law or
written assignment. (See, Ethics Opinion 87-57.) Under this
rule, where the service recipient did not assign support
rights, the IV-D attorney did represent the service
recipient individually. However, in 1994 the Alabama
Legislature passed Act 94-800 (now Code of Alabama 1975,
§38-10-7.1), which provides that the attorney in a IV-D
case represents DHR exclusively and that there is no
attorney-client relationship between the IV-D attorney and
any applicant or recipient of DHR’s support services,
regardless of the style of the case in which legal
proceedings are initiated. This law went into effect May
6, 1994.

The federal Office of Child Support Enforcement has
interpreted federal law and regulation to require that the
State IV-D agency accept an application for support
services
from any individual, and where possible and appropriate,
provide all available services to any applicant. Under this
interpretation, DHR must accept applications from the
noncustodial parent and must assist said applicants by
providing all services such as establishing paternity,
establishing a support obligation from an immediate income
withholding order, and modifying an existing order of
support.

Additionally, the Code of Federal Regulations, at 45 C.F.R.
§303.8, provides that, effective October 13, 1993, the
State
must have procedures in place for the review and, where
appropriate by application of the child support guidelines,
adjustment of existing child support orders. This review
must be performed every three years in all AFDC cases.
Additionally, the three year review must be performed at
the
request of either parent in a non-AFDC case, regardless of
which parent originally applied for and/or received support
services from DHR. The federal regulation further requires
that where indicated by application of the guidelines, DHR
must pursue modification of the child support order,
whether
the adjustment warranted is an increase or decrease of the
existing order.

The above-referenced federal requirements present a real
dilemma for DHR and its child support attorneys, since
applying the federal principles outlined herein requires
the
agency to accept, investigate, and refer cases to its
attorneys based solely on DHR’s interest in pursuing proper
awards of support and the enforcement thereof, without
regard to which parent has requested the service and/or
without regard to whether the other parent is or has been a
IV-D service recipient through DHR. Since the federal
review
and adjustment mandates require that the IV-D agency pursue
the guidelines regardless of the effect on the support
amount, the possibility exists that, in some instances, the
agency will be referring a case to its attorney to pursue a
downward modification of support. In some of these cases,
DHR, through the same attorney, may have previously pursued
legal action for the establishment or enforcement of the
existing order of support on behalf of or at the request of
the custodial parent.

DHR takes the position that, because Code of Alabama 1975,
§38-10-7.1 makes clear that there is never an
attorney-client relationship between the IV-D attorney and
the IV-D service recipient, there should be no attorney
conflict of interest issue in IV-D cases originating since
passage of the Act. However, since potential conflicts of
interest may exist in some cases predating the enactment of
this law, DHR policy has been established to address these
issues in cases which were initiated prior to the passage
of
the law.

Under current policy, where there has always been an
effective assignment of support rights from the original
IV-D support service recipient, a child support case
requiring legal action will be forwarded to the ‘regular’
IV-D attorney, regardless of whether DHR is pursuing an
increase or decrease in the current support amount, and
regardless of which parent has requested the services
presently being provided by DHR. However, if prior to the
passage of Act 94-800, the child support case was handled
by
a particular attorney during a period of time when there
was
no assignment of support rights to DHR, referral for court
action will be made to a different attorney when DHR seeks
a
reduction in support or other action at the request (or
application) of the noncustodial parent or other party
(such
as a caretaker relative) who may have interests adverse to
the ‘original’ IV-D service recipient. A copy of the policy
setting out these procedures is attached for your review
and
consideration.

There is some concern among attorneys representing DHR in
child support matters that the pursuit of action at the
request of the noncustodial parent gives at least the
appearance of a conflict of interest for the IV-D attorney,
particularly when services have previously been pursued on
behalf of the custodial parent, and that the policy
established by DHR does not adequately address the conflict
problem. Therefore, I am requesting a formal opinion
addressing the following questions:

1. May a IV-D attorney, who had previously represented the
State in an assigned IV-D case brought on behalf of one
parent or guardian, continue representing the State in
further or subsequent action for child support,
modification, or enforcement referred by DHR at the request
(or application) of another parent or individual who may
have interests adverse to the ‘original’ IV-D service
recipient?

2. Are there other ethical considerations, not identified
by DHR in the above-outlined policy, which may affect the
ability of the IV-D attorney to handle such cases for DHR
on
behalf of the State?”

* * *

ANSWER QUESTION ONE :

A Title IV-D attorney, who previously represented the State
in an assigned IV-D case brought on behalf of one parent or
guardian, may continue representation of the State in
subsequent actions for child support, modification, or
enforcement referred by DHR at the request of another
parent
or individual who may have interests adverse to the
“original” IV-D recipient.

ANSWER QUESTION TWO :

The IV-D attorney who represents the State should make full
disclosure to a IV-D service recipient as to the attorney’s
role in the proceedings and the fact that the attorney,
pursuant to Code of Alabama 1915, §38-10-1.1, has no
attorney-client relationship with the applicant or
recipient.

REASONING:

Pursuant to the provisions of Code of Alabama 1915,
§38-10-1.1, the IV-D attorney represents the State of
Alabama, Department of Human Resources, exclusively, and
has no attorney-client relationship with any
applicant orrecipient of the agency’s Support Enforcement
Services. The Commission hereby modifies RO-81-51 to
reflect
the mandates of this provision of the Code of Alabama,
recognizing that the true client of the IV-D attorney in
IV-D cases is DHR, “without regard to the style of the case
in which legal proceedings are initiated.”

The Commission further reasons that the role of the
attorney
in IV-D cases is an administrative act of procedure on
behalf of DHR whereby the rights of service recipients
under
Title IV-D are effectuated. The IV-D attorney, as counsel
for DHR, pursues the matters under IV-D, state law, or
other
rules and regulations of the federal Office of Child
Support
Enforcement. The federal agency’s requirements, pursuant to
45 C.F.R. §303.8, which mandate DHR’s reviewing all AFDC
cases every three years, and the requirement that DHR
pursue
modification of any child support order, whether upward or
downward, in no way abrogate the statutory provision which
defines the attorney-client relationship as being between
DHR and the IV-D attorney, and not the applicant or
recipient of such services.

In an effort to ensure that IV-D service recipients
understand that concept, the IV-D attorney should fully
explain to any eligible recipient the attorney’s role in
the
process. The service recipient should be made to understand
that no attorney-client relationship exists between the IV-
D
attorney and the service recipient.

The IV-D attorney should explain to the service recipient
the lack of confidentiality or privileged communication by
and between the IV-D attorney and the service recipient,
other than that where it might be established by federal or
state law independent of the Rules of Professional Conduct.
DHR is encouraged to develop some type of uniform
disclosure
requirements for its IV-D attorneys to ensure full and
adequate disclosure to service recipients of the role of
the
IV-D attorney, and the fact that no privilege or
confidentiality attaches to communications between the
service recipient and the attorney other than those
mandated
by federal or state law.

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