In a North Carolina child support enforcement case, does the CSE program lawyer represent the custodial parent or the government agency?

Plain-English summary

The inquiry concerns child support enforcement (CSE) actions brought under Title IV-D of the Social Security Act and North Carolina's Child Welfare Act. A CSE proceeding is instituted in the name and on behalf of the government, at the instigation of the child's custodian, who is named ex relatione. Lawyer A defends a non-custodial parent in such an action and asks whether the CSE lawyer represents the custodian.

The opinion concludes the CSE lawyer represents the government agency bringing the action, not the custodian. Citing Ethics Decisions 279 and 2007-3, the opinion reasons that the program's purpose is to support dependent children regardless of who has custody, and that automatically creating a client-lawyer relationship with the custodian would defeat that purpose because the lawyer could not later pursue a child support action against that custodian if custody and support obligations switched. The opinion cautions, however, that if the CSE lawyer makes statements that would lead a reasonable person to believe the lawyer represents him or her personally, a client-lawyer relationship may be inferred; to avoid that, in any private conference with a custodian the CSE lawyer should explain that he is not the custodian's lawyer, that their conversations are not confidential, and that if the government's and the custodian's interests diverge the lawyer will represent the government.

The opinion then resolves three procedural questions. Whether to serve discovery on the CSE lawyer or the custodian is a matter of civil procedure and trial strategy outside the committee's purview, but Lawyer A may seek information directly from the custodian without violating Rule 4.2, because the CSE lawyer does not represent the custodian (ED 2007-3). If a deposition of the custodian is properly noticed and the CSE lawyer declines to appear, Lawyer A may proceed; such communications are authorized by law and not barred by Rule 4.2. Finally, a CSE lawyer in the attorney general's office may call another attorney general staff lawyer as an expert witness; Rule 3.7(a) bars a lawyer from acting as advocate at a trial where the lawyer is likely to be a necessary witness, but Rule 3.7(b) does not impute that disqualification to other lawyers in the same organization unless the testimony would be adverse to the organization's client.

In practice

Under the North Carolina rules as they stood at the time of the opinion, the CSE program lawyer's client is the government agency, not the custodian (Ethics Decisions 279 and 2007-3). Per the opinion, opposing counsel may communicate directly with the custodian without violating Rule 4.2 unless the custodian is separately represented, and may proceed with a properly noticed deposition even if the CSE lawyer declines to appear, because such contact is authorized by law.

Per the opinion, when the CSE lawyer makes statements that would lead a reasonable person to believe the lawyer represents the custodian personally, a client-lawyer relationship may be inferred; the opinion describes the disclosures the CSE lawyer should give in a private conference to avoid that result. On expert testimony, Rule 3.7(a)'s advocate-witness bar is not imputed to other lawyers in the same organization under Rule 3.7(b) unless the testimony would be adverse to the organization's client.

Common questions

Q: Does the child support enforcement lawyer represent the custodial parent?

A: No. The opinion concludes the CSE lawyer represents the government agency bringing the action, not the custodian, citing Ethics Decisions 279 and 2007-3.

Q: Can I contact the custodial parent directly, or must I go through the CSE lawyer?

A: You may contact the custodian directly without violating Rule 4.2, because the CSE lawyer does not represent the custodian, unless the custodian is represented by his or her own lawyer in the matter.

Q: The CSE lawyer says he will not attend the custodian's deposition. Can I still take it?

A: Yes. The opinion concludes that if the custodian was properly served with notice, the deposition may proceed even though the CSE lawyer fails to appear, because such communications are authorized by law and not barred by Rule 4.2.

Q: Can a CSE lawyer call another lawyer from the same attorney general's office as an expert?

A: Yes. The opinion concludes Rule 3.7(a)'s advocate-witness disqualification is not imputed to other lawyers in the same organization under Rule 3.7(b) unless the testimony would be adverse to the organization's client.

Q: What should the CSE lawyer tell the custodian to avoid creating a lawyer-client relationship?

A: Per ED 279, in any private conference the CSE lawyer should explain that he is not the custodian's lawyer, that their conversations are not protected by confidentiality, and that if the government's and the custodian's interests diverge the lawyer will represent the government.

Background and rules framework

The opinion applies North Carolina Rule 4.2 (communication with a represented person), Rule 3.7(a) and (b) (lawyer as witness and imputation within an organization), and Rule 1.0(f) (definition of informed consent). These are the North Carolina analogues of Model Rules 4.2, 3.7, and 1.0. The opinion situates the analysis in the Title IV-D statutory framework (42 U.S.C. 651 et seq.) and North Carolina's Child Welfare Act (Chapter 110, Article 9).

Citations and references

Rules of Professional Conduct:

• MR 4.2 / NC Rule 4.2 (communication with a person represented by counsel; exception for communication authorized by law)
• MR 3.7 / NC Rule 3.7(a), (b) (lawyer as a necessary witness; non-imputation within a firm or organization)
• MR 1.0 / NC Rule 1.0(f) (definition of informed consent)

Statutes:

• Title IV-D of the Social Security Act, 42 U.S.C. 651 et seq. (state child support enforcement agencies).
• North Carolina Child Welfare Act, N.C. Gen. Stat. Chapter 110, Article 9.

Cases:

• County of Durham DSS ex rel. Stevons v. Charles, 182 N.C. App. 505, 642 S.E.2d 482 (2007), CSE action brought in the name of the government ex relatione the custodian.

Other opinions cited:

• NC Ethics Decision 279: the CSE lawyer represents the government, not the custodian, and should disclose that in private conferences.
• NC Ethics Decision 2007-3: a lawyer for the non-custodial parent may communicate directly with the custodial parent.

See also

• ABA Op. 97-408: Contacting a Represented Agency (4.2)
• NC State Bar 2011 FEO 15: Public Records Contact
• NC State Bar 2011 FEO 1: Advocate as a Witness

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/2010-formal-ethics-opinion-5/

Original opinion text

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

Inquiry #1:

Title IV-D of the Social Security Act, 42 U.S.C.S. 651 et seq., requires each state to establish a child support enforcement (CSE) agency to provide services for the establishment and collection of child support for dependent children who are recipients of public assistance. The act also requires the CSE agency to provide assistance in the collection of child support to a custodian of a dependent child not receiving public assistance if the custodian applies to the agency for such assistance. The Child Welfare Act, Chap. 110, Art. 9, of the N.C. General Statutes, enacts the requirements of Title IV-D. The CSE program established by the North Carolina act is administered by the Child Support Enforcement Agency, a branch of the North Carolina Department of Health and Human Services. The programis usually administered at the county level; the local CSE program administrator hires a lawyer to institute the child support proceeding against the non-custodial, responsible parent. The proceeding is instituted in the name and on behalf of the government at the instigation of the custodian of the child who is named ex relatione (e.g., County of Durham DSS of ex rel. Stevons v. Charles, 182 N.C. App. 505, 642 S.E. 2d 482 (2007)).

Lawyer A is defending a non-custodial parent in a child support action brought by the lawyer for the child support enforcement (CSE) program for the county. Does the CSE lawyer represent the custodian of the children?

Opinion #1:

The lawyer representing the CSE program does not represent the custodian of the children; the lawyer represents the government agency bringing the action. As previously observed in Ethics Decisions 279 and 2007-3, the purpose of the CSE program is to provide financial support to dependent children regardless of who currently has custody of a dependent child and regardless of who may currently owe support payments. "It would defeat the purpose of [CSE] legislation if a client-lawyer relationship were automatically created between the [CSE] lawyer and the custodian of the children because the lawyer would be unable to pursue any future child support action against such custodian should support and custody obligations switch." ED 279.

Nevertheless, if the CSE lawyer makes statements to the parent that would lead a reasonable person to believe that the lawyer is representing him or her personally, a client-lawyer relationship may be inferred. To avoid misleading the custodian as to the relationship, in any private conference with a custodian (outside of court proceedings), "the [CSE] lawyer should explain that he or she is not the custodian's lawyer; that their conversations are not protected by the duty of confidentiality; and that if the interests of the government and the custodian of the children diverge, the lawyer will represent the interests of the government." ED 279.

Inquiry #2:

Lawyer A wants to serve discovery on the custodian of the children. Should the discovery be served on the lawyer for the CSE program or on the custodian of the children?

Opinion #2:

This is a question of civil procedure and trial strategy that is outside of the purview of the Ethics Committee. However, if Lawyer A decides to seek information directly from the custodian, it would not violate Rule 4.2 unless the custodian is represented by his or her own lawyer in the matter.

During the representation of a client, Rule 4.2 prohibits a lawyer from communicating with a person that the lawyer knows is represented in the matter unless the lawyer has the consent of the other lawyer or is authorized by law or court order to communicate with the person. Lawyer A's direct communications with the custodian will not violate Rule 4.2 because the CSE lawyer does not represent the parent. ED 2007-3 (lawyer appointed to represent defendant/non-custodial parent in child support case may communicate directly with custodial parent).

Inquiry #3:

Lawyer A wants to depose the custodian. The CSE lawyer informed Lawyer A that he would not attend the deposition. May Lawyer A proceed with the deposition?

Opinion #3:

Yes. If the custodian was properly served with notice of the deposition, there is no prohibition on proceeding with the deposition although the CSE lawyer fails to appear. Even when a deponent is represented by a lawyer in a matter, if the deposition is properly noticed and the lawyer for the deponent fails or refuses to appear, the lawyer noticing the deposition may proceed. Such communications are "authorized by law" and, therefore, not prohibited by Rule 4.2.

Inquiry #4:

In a case involving international child support enforcement issues, the CSE lawyer, who works in the North Carolina Attorney General's Office, would like to call another lawyer from the attorney general's staff to testify as an expert. Does this violate the Rules of Professional Conduct?

Opinion #4:

No. Rule 3.7(a) prohibits a lawyer from acting as an advocate at a trial in which the lawyer is likely to be a necessary witness. However, this disqualification is not imputed to the other lawyers in same firm or organization unless the lawyer's testimony would be adverse to the interests of the firm or organization's client. Rule 3.7(b).