Ethics for
Child Support
Attorneys and
Employees
Professor William Reynolds
University of Maryland
School of Law
Christin L. Semprebon, Esq.
Vermont Office of
Child Support
It aIn’t no sIn If you crack a few
laws now and then, just so long
as you don’t break any. – Mae
West
MODEL RULES OF
PROFESSIONAL CONDUCT
• The American Bar Association’s Model
Rules of Professional Conduct were
adopted by the ABA House of Delegates
in 1983
• They serve as the models for the ethics
rules for all states except California
• The Model Rules set minimum
expectations for a lawyer’s professional
responsibilities and conduct
Professional Misconduct – Rule 8.4
• May include violations or attempts to violate the
Rules of Professional Conduct, or assisting
others to violate the Rules
• Criminal conduct that adversely affects the
perception of the lawyer’s honesty,
trustworthiness and fitness to practice
• Fraud, deceit, misrepresentation and dishonesty
all constitute Professional Misconduct
• State or imply an ability to improperly influence a
government agency or official to achieve results
that violate the Rules
Reporting Professional Misconduct
Rule 8.3
• A lawyer who knows that another lawyer has
violated the MRPC must affirmatively report that
misconduct to the Court or State Bar
• Misconduct must raise substantial question as to
lawyer’s honesty, trustworthiness and fitness to
practice law
• Does not have to report confidential information
covered by MRPC 1.6 (attorney – client
privilege)
PROFESSIONAL
RESPONSIBILITIES AND OTHERS
• Who do we deal with when maintaining
professional responsibilities?
• Represented parties and their counsel
• Unrepresented parties
• The Court
• Employers
• Banks / Insurance Companies
• Non-Attorney IV-D agency staff
Dealing with Represented Parties
Rule 4.2
• In representing a client, a lawyer shall not
communicate about the subject of the
representation with a person the lawyer
knows to be represented by another
lawyer in the matter, unless the lawyer has
the consent of the other lawyer or is
authorized to do so by law or a court
order.
SCENARIO!
You are a IV-D attorney at court on an
ongoing contempt case with a “frequent
flier”. At court, the NCP asks if he may
talk to you before the hearing. You take
him into a conference room where he
candidly tells you how his under the table
income is steady enough to meet his own
needs, but he has trouble budgeting for
child support…
SCENARIO!
After a 20 minute conversation with the
man, he tells you he had better check and
see if his court-appointed attorney has
arrived yet. This is the first time you have
heard he was represented. How do you
handle this situation?
SCENARIO!
• A mother contacts your office asking to be
sent a pay history on her child support
case because her “attorney needs it for
court”.
• Do you send her the pay history or decline
to communicate because she is
represented by counsel?
Dealing With Unrepresented
Parties – Rule 4.3
• 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. The lawyer shall not give legal advice
to an unrepresented person, other than the advice to
secure counsel, if the lawyer knows or reasonably
should know that the interests of such a person are or
have a reasonable possibility of being in conflict with the
interests of the client.
SCENARIO!
You are a IV-D attorney with a responding
interstate case from NJ. The NCP is
failing to pay current child support for his
25 year old son because he has never
moved to modify or terminate the NJ open
ended order for current support. Your
state holds a court enforcement hearing
and CP participates by phone from NJ.
The parties can’t stand each other….
SCENARIO!
After the hearing, you urge the NCP to
sign up for state services and request a
modification of his NJ order if he cannot
afford to pay it, and given the age of his
son. The CP pipes up on the speaker
phone that she has never hung up, and
accuses you - “her attorney” - of creating a
conflict of interest. Is she right?
SCENARIO!
A man comes to your office wanting
assistance in filing a paternity complaint
and genetic testing request against a
mother of a new baby. He completes an
application for services and a case is
opened. You send a letter to mother
informing her of the pending intent of the
state to file a parentage complaint….
SCENARIO!
• Mother shows up at your office distraught,
alleging that she is the victim of domestic
violence at the hands of this man, and has
police reports to prove it.
• Does your state continue to pursue the
case? If so what, if anything, do you do to
protect Mother?
Fairness to Opposing Parties
Rule 3.4
• No obstructing, concealing or altering evidence
with potential evidentiary value
• No falsification of evidence or assist a witness in
giving false testimony
• No frivolous discovery requests, and comply with
all pretrial discovery procedures in good faith
• Do not give personal opinions in trial
• Do not counsel a non-client or a non-agent of
the client to refrain from giving relevant
information to another party
Truthfulness as an Advocate
Rule 4.1
In the course of representing a client a lawyer shall not
knowingly:
(a) make a false statement of material fact or law
to a third person; or
(b) fail to disclose a material fact to a third
person when disclosure is necessary to avoid
assisting a criminal or fraudulent act by a client,
unless disclosure is prohibited by Rule 1.6.
SCENARIO!
Your state agency equitably divides all
payments an NCP makes among multiple
cases. Mr. Casanova has 3 different
cases with women he rarely pays: Patty
Poorhaus receives public assistance, Dora
Doormat works and rarely asks for
enforcement, and Wilma Warrior files
frequent court enforcement actions. You
are with Ms. Warrior at Court, and she
demands payment in full of her debt…..
SCENARIO!
Judge orders Casanova to pay Wilma her
entire debt of $1,500, or he will go to jail.
Do you tell the Judge that if the money is
paid through your agency, mother may
only receive a third of what was ordered?
If so, what do you do if Wilma objects and
the Judge tells you an order is an order
and the other mothers failed to prosecute
their claims?
Respect for Tribunal
Rule 3.5
• Do not try to influence Judge or other court
official by means prohibited by law
• No ex parte communications with the
Court during the proceeding unless
authorized to do so by law or court order
• Engage in conduct intended to disrupt a
tribunal
Candor Toward Tribunal
Rule 3.3
• A lawyer shall not knowingly make false
statements of fact, fail to disclose adverse legal
authority controlling in the case, or offer
evidence the lawyer knows to be false.
• A lawyer may take remedial steps if a client
engages in criminal or fraudulent conduct
related to the proceedings, including disclosure
to the tribunal
• In an ex parte proceeding, the lawyer shall
inform the tribunal of all material facts, adverse
or not, that will enable the tribunal to render an
informed decision
SCENARIO!
You are at a court enforcement hearing
where Mr. Axtay has had a recent large
intercept take place as a result of a joint
federal filing with his new wife, Mrs. Axtay.
He testifies in the proceeding that he
never worked last year and that Mrs. Axtay
was his sole source of support. The
intercept is on a 6 month hold pending an
injured spouse filing with the IRS…..
SCENARIO!
Do you tell the Judge that there is a large
amount of money on hold that has not yet
been disbursed?
What if the Judge demands to know the
source of the payment before he can
render a decision on the case?
How do you handle and what can you tell
him?
Unauthorized Practice of Law
Rule 5.5
• Only practice in the Jurisdiction that you
are authorized to, and do not hold yourself
out as a lawyer in a state or jurisdiction to
which you have not been admitted, or if
you have been disbarred from that
jurisdiction
• Pro hac vice procedures must be complied
with to temporarily practice outside of your
jurisdiction
Unauthorized Practice of Law
Rule 5.3
• A lawyer having direct supervisory authority over
a non-lawyer employee shall make reasonable
efforts to ensure that the employee’s conduct is
compatible with professional obligations of the
lawyer
• Such a lawyer may be responsible if that person
violates the Rules of Professional Conduct,
especially if the lawyer had knowledge of the
conduct, and did not take steps to correct it
SCENARIO!
You overhear the agency secretary on the
phone with a mother, saying, “You don’t
have to report direct cash payments as
child support. If the payment is not made
through the State, then that is considered
a gift.” What if you are scheduled to go to
court on this case? Would you question
mother about these cash payments, or
inform the Judge about them?
RESPONSIBILITIES TO CLIENTS
WHO is the client of the IV-D Attorney?
- Is it the custodial parent, the noncustodial
parent, the child, the taxpayers, the state
agency, or all / none of the above?
- To whom do our legal efforts attach? Who
gets to call the shots, and whose secrets
should we be keeping?
Competence and Diligence
Rules 1.1 and 1.3
• A lawyer shall provide competent
representation to a client. Competent
representation requires the legal
knowledge, skill, thoroughness and
preparation reasonably necessary for the
representation.
• A lawyer shall act with reasonable
diligence and promptness in representing
a client.
Competence and Diligence
• In State of Arizona v. Garcia, 931 P.2d 427
(1996), the Court declined to award child
support arrears based upon the doctrine of
laches, b/c it took the State Child Support
agency 9 years to brings its claim
• In DCF v. JJE, 953 So.2d 659 (2007), the
Florida Court threw out a parental termination
case when it found the state agency had failed
to conduct a diligent search or inquiry to
discover Father’s address in order to give him
service of notice of the termination proceedings
SCENARIO!
You have 12 hearings scheduled for
tomorrow and your usually reliable
paralegal routinely preps your files before
Court. On the morning of the hearings you
discover that several files are unprepared!
Whose fault is this, and what do you tell
the Judge when you walk into the hearings
without proper forms or case accountings?
Client Determines Objectives
Rules 1.2 and 1.13
• A lawyer shall abide by a client's decisions
concerning the objectives of representation, and
as to whether to settle a matter.
• A lawyer shall not counsel a client to engage, or
assist a client, in conduct that the lawyer knows
is criminal or fraudulent
• A lawyer employed or retained by an
organization represents the organization acting
through its duly authorized constituents.
Client Determines Objectives
In Cantin v. Young, 742 A.2d 1246 (1999),
the Vermont Supreme Court dismissed an
appeal filed solely by the Office of Child
Support, because the Mother (who had the
assistance of OCS, but did not receive
public assistance) had not assigned her
rights of support collection to the State and
there was no authority for the State to file
an appeal as an independent party
Communication
Rule 1.4
A lawyer shall:
•
•
•
•
•
•
(1) promptly inform the client of any decision or circumstance with respect to
which the client's informed consent, as defined in Rule 1.0(e), is required by
these Rules;
(2) reasonably consult with the client about the means by which the client's
objectives are to be accomplished;
(3) keep the client reasonably informed about the status of the matter;
(4) promptly comply with reasonable requests for information; and
(5) consult with the client about any relevant limitation on the lawyer's
conduct when the lawyer knows that the client expects assistance not
permitted by the Rules of Professional Conduct or other law.
(b) A lawyer shall explain a matter to the extent reasonably necessary to
permit the client to make informed decisions regarding the representation.
Loyalty and Conflict of Interest
Rule 1.7
•
(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the
representation involves a concurrent conflict of interest. A concurrent conflict of
interest exists if:
(1) the representation of one client will be directly adverse to another client; or
(2) there is a significant risk that the representation of one or more clients will be
materially limited by the lawyer's responsibilities to another client, a former client or a
third person or by a personal interest of the lawyer.
•
(b) Notwithstanding the existence of a concurrent conflict of interest under paragraph
(a), a lawyer may represent a client if:
(1) the lawyer reasonably believes that the lawyer will be able to provide competent and
diligent representation to each affected client;
(2) the representation is not prohibited by law;
(3) the representation does not involve the assertion of a claim by one client against
another client represented by the lawyer in the same litigation or other proceeding
before a tribunal; and
(4) each affected client gives informed consent, confirmed in writing.
Confidentiality
Rule 1.6
A lawyer shall not reveal information relating to the representation of
a client unless the client gives informed consent, the disclosure is
impliedly authorized in order to carry out the representation or the
disclosure is permitted by paragraph (b) of the Rule.
The exception to this rule is that a lawyer may reveal information
relating to the representation of a client to the extent the lawyer
reasonably believes necessary:
(1) to prevent reasonably certain death or substantial bodily harm;
(2) to prevent the client from committing a crime or fraud that is
reasonably certain to result in substantial injury to the financial
interests or property of another
Conflict of Interest?
In Ussery v. Gray, 804 S.W.2d 232 (1991),
the Texas Court of Appeals held that the
state attorney did not need to be
disqualified in its paternity suit against a
man, who also had the services of the
State and with the same state attorney in
his pursuit to collect child support from his
ex-wife. The father had alleged the
Attorney used confidential information
against him.
SCENARIO!
Donald Quimp has 2 child support cases
he never pays on. His first ex, Ivanka
Quimp, requests the State file an
administrative subpoena to obtain his bank
records. You file an administrative
subpoena citing this case only, and
receive a treasure trove of financial
information about his $80K bank
account…
SCENARIO!
The next week, the 2nd ex-wife, Marla
Quimp, has her attorney contact you to
brainstorm about an upcoming court
enforcement hearing against Mr. Quimp in
that case. Do you alert Marla’s attorney
about the bank records? Would you
attend the court hearing and try to have
them admitted? What if the Donald
objects?
Conflict of Interest
In State of Arkansas Office of Child
Support Enforcement v. Terry, 985 S.W.2d
711 (1999), the Supreme Court of
Arkansas found that the state child support
agency represented the interests of the
state, and not either parent, such that it
could continue to remain involved in
providing child support services after the
parents switched custodial roles
SCENARIO!
Holly Gogh-Lucky, a custodial parent,
meets with you to file for a modification of
her support order. In her financial
affidavit, she discloses a large bank
account held with her new spouse, Larry
Lucky. She reveals that her husband
Larry recently received a large inheritance
which has been a true blessing. Larry
Lucky’s name rings a bell…..
SCENARIO!
You suddenly recall that Larry Lucky is
also a noncustodial parent in your
caseload, who is obligated to pay a
nominal support order of $50.00 per month
to his ex-wife, b/c he claims extreme
poverty as a self-employed carpenter.
Would you use Holly Gogh-Lucky’s
information to file for an upward
modification on her husband’s case?
SCENARIO!
Dan Dueling is in your child support
caseload as both a noncustodial parent
who owes child support, and a custodial
parent of another minor child. He is not
working and has fallen behind on his
payments. He fails to attend a child
support contempt hearing and a bench
warrant issues for his arrest….
SCENARIO!
Dan Dueling has never been picked up on
the warrant, but he contacts your office in
his role as the custodial parent in an
attempt to collect child support. He would
like to make an appointment. Do you
make the appointment? Do you contact
law enforcement and / or the custodial
mother in his case to let them know where
he can be found?
Special Conflicts Of Interest For Former
And Current Government Officers And
Employees – Rule 1.11
• A lawyer who has formerly served as a
government employee must take special care to
avoid conflicts in future private employment
because they may have confidential government
information about a new private case
• A lawyer currently serving as a government
employee shall not participate in a matter in
which the lawyer participated personally and
substantially while in private practice or
nongovernmental employment, unless the
appropriate government agency gives its
informed consent, confirmed in writing
Conflicts of Interest
In Iowa Supreme Court Disciplinary Board v.
Johnson, 728 N.W.2d 199 (2007), a former
county attorney who signed petitions in juvenile
cases received a public reprimand for then later
serving as a guardian ad litem for those same
children in her former caseload, despite attempt
she had made to avoid conflicts of interest, b/c
her new employer had failed to implement an
effective “Chinese Wall” to shield her from
involvement in her prior cases in which she had
substantial involvement.
Candid Advice – Rule 2.1
In representing a client, a lawyer shall
exercise independent professional
judgment and render candid advice. In
rendering advice, a lawyer may refer not
only to law but to other considerations
such as moral, economic, social and
political factors, that may be relevant to
the client's situation.
SCENARIO!
A 23 year old unmarried mother comes in
as a result of receiving public assistance
for her new baby. She is informed that she
must name the baby’s father, and she
reluctantly reports that her 16 year old
neighbor is the father. You realize that he
was 15 and she was 22 at the time of
conception. This meets the definition of
statutory rape in your state….
SCENARIO!
Do you make the mother complete the
parentage forms, or advise her of the
criminal statute?
What else should you do, and will you let
this Mother know the state’s plans?
Would you do anything differently if the
mother was 15 and had named a 22 year
old alleged father?
CHILD SUPPORT AGENCY
PROBLEMS AND ISSUES
• Expectations of parents toward IV-D
Attorneys
• Role of Child Support staff and nonattorney managers
• Sovereign immunity and agency liability
• Confidentiality of government information
• Bringing your work into your home life
(and vice-versa…)
Suing the Child Support Agency
In Kaplan v. LaBarbera as District
Attorney, 58 Cal.App.4th 175 (1997), the
California Appellate Court determined that
42 U.S.C.A. sec. 1983 provides for
immunity from liability for government
prosecutors and child support division
acting within the scope of their duties.
Suing the Child Support Agency
In Powers v. Office of Child Support, 795
A.2d 1259 (2002), the Vermont Supreme
Court ruled that sovereign immunity barred
Plaintiff Mother’s cause of action for gross
negligence against OCS and individual
employees. The Court noted that OCS
does not owe a specific legal duty to any
particular group of persons, but rather to
Vermont society as a whole.
SCENARIO!
A custodial parent reports that she would
love to get off of state assistance and
accept a job offer, but first she needs
reliable child care. Your sister is starting
up a new home based child care center,
and could use some clients. Do you refer
the CP to your sister? What if it were your
friend running the center instead?
SCENARIO!
Your office co-worker has her own child
support case that she is protected out of
and has no access to on her work
computer. She reports to you that her exhusband recently moved and changed
jobs, and she asks you to enter his
updated information on the system (that
she provides to you) from your computer.
Can you do this? Why or why not?
SCENARIO!
You are looking for the address of an
evasive NCP who is dodging service of
process. You happen to know that one of
your personal friends who works outside of
child support is a “Facebook friend” with
him from their school days (along with 792
of her “friends”), but you are pretty sure
that they are not close. Could you ask her
about him? Why or why not????
SCENARIO!
Could you ask your friend if she could log
onto her Facebook account, so you could
access his page to see what he is up to?
Would it be OK if you did not let her know
which NCP friend of hers that you were
looking for?
Or is there a better way to get this same
information on an NCP?
CONCLUSION
Questions?
Christin L. Semprebon, Esq.
Vermont Office of Child Support
100 Mineral Street, Suite 202
Springfield, Vermont 05156
802-885-6212; 802-885-6213 (fax)
Christin.Semprebon@ahs.state.vt.us
Professor William Reynolds
University of Maryland School of Law
Baltimore, Maryland