Can a county child-support office help a non-custodial parent reduce support it earlier helped the custodial parent obtain?

Plain-English summary

The supervising attorney for the Pima County Attorney's Child Support Services Division explained that the Division helps custodial parents obtain support from non-custodial parents under a federal program. To address whether it was forming attorney-client relationships, the Division had begun telling custodial parents (on its forms) that its client is the State of Arizona, not the parent. A new federal mandate then required the Division also to help non-custodial parents seek modification of support orders, raising a conflict where it had earlier helped the custodial parent.

The committee concluded the answer turns on whether an attorney-client relationship was actually formed with the custodial parent, which is determined by substantive law using Arizona's "subjective" test (whether the person believed he was consulting a lawyer to secure legal advice), citing Foulke v. Knuck and Alexander v. Superior Court. Representing the non-custodial parent in a modification is "substantially related" to the earlier work for the custodial parent, and their interests are materially adverse, so ER 1.9(a) applies if a relationship existed. Following In re Ockrassa and the committee's Opinion 81-29, confidences are presumed when a lawyer switches sides in a substantially related matter.

The committee distinguished two periods. For dealings before the Division began telling parents the State was its client, a court would very likely find an attorney-client relationship was formed. For dealings after, it depends on whether, despite the forms, the parent was treated in a way that led him to believe he was getting legal advice. Where a relationship existed, the committee answered the three questions no: the Division may not argue for downward modification for the non-custodial parent, may not furnish the custodial parent's information to the non-custodial parent, and may not argue against modification after helping the non-custodial parent prepare the paperwork. Because whether a relationship was formed is a question of law it could not decide, the committee added that if the office determines none exists, it must treat both parents as unrepresented and, under ER 4.3, make reasonable efforts to prevent any misunderstanding of its role.

Currency note

This opinion was issued in 1991, before Arizona's 2003 adoption of the Ethics 2000 revisions to the Rules of Professional Conduct. The conflict rules (ER 1.9) and the unrepresented-person rule (ER 4.3) have since been revised. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a child-support office help the non-custodial parent cut support it helped set for the custodial parent?

A: Not if it formed an attorney-client relationship with the custodial parent. The opinion concluded ER 1.9 then bars the office from the substantially related, materially adverse modification work.

Q: How is it decided whether the office "represented" the custodial parent?

A: The opinion concluded that is a question of substantive law under Arizona's subjective test: whether the parent believed he was consulting the office as a lawyer to get legal advice. Telling parents the State is the client matters but is not necessarily decisive.

Q: Can the office share the custodial parent's financial information with the non-custodial parent?

A: Not where a relationship existed. The opinion concluded ER 1.9 bars furnishing information relating to the representation of the former client (the custodial parent) to the adverse party.

Q: What if no attorney-client relationship was formed?

A: Then the office must treat both parents as unrepresented persons and, under ER 4.3, make reasonable efforts to ensure they understand the office's role and any adverse interest.

Background and rules framework

The opinion applies ER 1.9 (Model Rule 1.9), which bars representation adverse to a former client in the same or a substantially related matter and bars using the former client's information to the client's disadvantage, and ER 4.3 (Model Rule 4.3), which requires a lawyer dealing with an unrepresented person not to imply disinterest and to correct misunderstandings about the lawyer's role. Whether an attorney-client relationship was formed is governed by substantive law, not the ethics rules.

Citations and references

Rules of Professional Conduct:

• MR 1.9 / AZ ER 1.9 (duties to former clients; substantially related matters)
• MR 4.3 / AZ ER 4.3 (dealing with an unrepresented person)

Statutes:

• Family Support Act of 1988 / Social Security Act, 42 U.S.C. § 651 et seq. (child-support enforcement and order review)

Cases:

• Foulke v. Knuck, 162 Ariz. 517, 784 P.2d 723 (App. 1989), test for an attorney-client relationship
• Alexander v. Superior Court, 141 Ariz. 157, 685 P.2d 1309 (Ariz. 1984), subjective test for the relationship
• In re Ockrassa, 165 Ariz. 576, 799 P.2d 1350 (Ariz. 1990), ER 1.9 bars a prosecutor from a substantially related matter against a former client
• Trinity Ambulance Service, Inc. v. G&L Ambulance Services, Inc., 578 F. Supp. 1280 (D. Conn. 1984), when an attorney-client relationship exists

Other opinions cited:

• Arizona Opinions 71-36 (1971), 74-22 (1974), 81-29 (1981), 89-04 (1989): attorney-client relationship and the presumption of shared confidences

See also

• AZ Ethics Op. 91-05: Imputed Disqualification
• AZ Ethics Op. 91-12: Are a Contracting City and County Attorney One "Firm"?
• AZ Ethics Op. 89-08: Imputed Disqualification in Government Practice

Source

• Landing page: https://tools.dev.azbar.org/RulesofProfessionalConduct/ViewEthicsOpinion.aspx?id=636

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

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.

©State Bar of Arizona 1991

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

(c) STATE LAW REQUIREMENTS FOR REVIEW OF INDIVIDUAL AWARDS.--

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.