In child-support enforcement cases, does an assistant attorney general represent the custodial parent or only the state, and what are the no-contact and disclosure duties?

Plain-English summary

The inquiry concerned whom assistant attorneys general represent when employed in the support-enforcement division, and the resulting contact and conflict duties when they pursue support against, or on behalf of, custodial parents through the Division of Child Support Enforcement (DCSE). Relying on the Attorney General's November 23, 1987 letter, the committee opined that the assistant attorneys general represent the state, deriving their authority through state and federal support-enforcement legislation. The Attorney General's office represents the Virginia Department of Social Services, of which the DCSE is a unit, and provides representation to the agency and its employees acting within the scope of their employment.

The committee addressed contact under DR 7-103(A)(1): plaintiff's counsel in an action against the DCSE, and legal-aid attorneys who are not counsel of record, may not communicate (or cause another to communicate) about the subject of the representation with the party in the matter without the prior consent of that party's lawyer or authorization by law, though communication unrelated to the subject matter of the litigation is ethically permissible. The committee opined that in all circumstances involving the custodial parent, including where the parent is or was a public-assistance recipient or where a state debt for public assistance exists, the Attorney General represents only the state when establishing or enforcing a support order.

Because the Attorney General represents only the state, the committee opined that there is no potential conflict of simultaneous, multiple representation requiring the assistant attorneys general to withdraw. It added that the assistant attorney general must disclose the potential conflict as soon as reasonable within the context of these support cases, disclosing the relationship to the custodial parent seeking establishment or enforcement of support from the DCSE.

Currency note

This opinion was issued in 1988, under Virginia's former Code of Professional Responsibility (the disciplinary rule it cites), before the Virginia State Bar's adoption of the Rules of Professional Conduct effective January 1, 2000. 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: Does an assistant attorney general in support-enforcement cases represent the custodial parent?

A: Under this 1988 opinion, no. The committee opined that the Attorney General represents only the state (the Department of Social Services and its DCSE), not the custodial parent.

Q: Is there a conflict requiring the assistant attorney general to withdraw?

A: The committee opined there was no simultaneous multiple-representation conflict requiring withdrawal, because the Attorney General represents only the state.

Q: What must the assistant attorney general disclose?

A: The committee opined that the assistant attorney general must disclose the relationship to the custodial parent, as soon as reasonable within the context of the support case, so the parent understands the Attorney General represents only the state.

Background and rules framework

The opinion interpreted former Virginia DR 7-103(A)(1), the no-contact rule on communicating with a party represented by counsel, the counterpart of ABA Model Rule 4.2, in the context of child-support enforcement litigation. It located the Attorney General's authority in Va. Code § 2.1-121 and state and federal support-enforcement legislation.

Citations and references

Rules of Professional Conduct:

• Former Virginia DR 7-103(A)(1) (communication with a represented party; counterpart of ABA Model Rule 4.2)

Statutes:

• Va. Code § 2.1-121 (legal service for the Commonwealth and its agencies)

See also

• VA LEO 1820: Lawyers Contacting Represented Railroad Workers
• VA LEO 1058: Commonwealth's Attorney Conflict From a Former Firm Colleague
• VA LEO 1038: Assistant Attorneys General Advocating and Advising the Same Board

Source

• Landing page: https://vsb.org/Site/about/rules-regulations/leo-opinions.aspx
• Original PDF: https://www.vsb.org/common/Uploaded%20files/LEOs/0964.pdf

Original opinion text

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

Committee Opinion
March 1, 1988
LEGAL ETHICS OPINION 964

ATTORNEY GENERAL –
COMMUNICATION WITH AN
UNREPRESENTED PARTY:
REPRESENTATION OF CUSTODIAL
PARENT IN LAWSUITS AGAINST THE
DIVISION OF CHILD SUPPORT
ENFORCEMENT.

With regard to whom the Assistant Attorneys General represent when employed in the
support division, the committee opined that in light of the Attorney General's November
23, 1987 letter, the Attorneys General represent the state, deriving their authority through
state and federal support enforcement legislation. The committee further opined as
follows with regard to the questions presented in the inquiry.

1. The Attorney General's Office represents the Virginia Department of Social Services
   of which the DCSE is a unit. Representation by the Attorney General's Office is provided
   to the agency and its employees when acting within the scope of their employment. [See
   § 2.1-121, Code of Virginia.]
2. Under DR:7-103(A)(1), plaintiff's counsel in an action against the DCSE shall not
   communicate or cause another to communicate on the subject of the representation with
   the party in that matter unless he has the prior consent of the lawyer representing such
   other party or is authorized by law to do so. If the communication does not pertain to the
   subject matter of the litigation, there is no ethical obligation to refrain from the same.
3. Likewise, legal aid attorneys who are not counsel-of-record shall not communicate or
   cause another to communicate on the subject of the representation with the party in that
   matter except with the prior consent of the lawyer representing such other party or when
   authorized by law to do so, except that communication which does not pertain to the
   subject matter of the litigation is ethically permissible.
4. In all other circumstances involving the custodial parent, whether or not he has ever
   been a recipient of public assistance in an action against the DCSE, the Attorney General
   represents only the state when establishing or enforcing an order.
5. In all circumstances involving the custodial parent, whether or not he or she is a
   current or former recipient of public assistance and where a state debt for the payment of
   public assistance exists, the Attorney General represents only the state when establishing
   or enforcing an order.
6. In the situations described in 4 and 5, the Assistant Attorney General must disclose
   the potential conflict as soon as is reasonable within the context of these support cases.
   Since the Attorney General represents only the state, the Assistant Attorneys General
   must disclose their relationship to the custodial parent seeking establishment or
   enforcement of support from the DCSE, a state agency.

Committee Opinion
March 1, 1988

7. Since the Attorney General represents only the state in these cases, there is no
   potential conflict of simultaneous, multiple representation for which the Assistant
   Attorneys General are ethically required to withdraw. [DR:7-103(A)(1)]
   Committee Opinion
   March 1, 1988