Can an assistant corporation counsel who represents the state in a paternity action also represent the mother in the same proceeding?

Plain-English summary

Opinion E-83-17 asked whether an assistant corporation counsel who represents the state in paternity actions may also represent the mother in the paternity proceedings. The committee answered yes, provided the mother is advised, at the beginning of the representation, of the corporation counsel's primary duty to the state and the scope of the corporation counsel's representation.

The committee reasoned from the former Code's requirement that a lawyer's professional judgment be exercised solely for the client's benefit, free of compromising influences and loyalties (SCR 20.23(1)), and that a lawyer asked to represent multiple clients with potentially different interests must weigh carefully whether judgment may be impaired or loyalty divided (SCR 20.23(3)(b)). It noted that federal law requires AFDC applicants to cooperate with the state in establishing paternity, and acknowledged that clients in a poverty group may tend to be submissive and to acquiesce, feeling they have no choice while worrying they are not getting independent representation (citing ABA Formal Opinion 345). Balancing these concerns against the recognized duty to represent the indigent, the committee found the interests of the state and the mother in the paternity action substantially the same, namely to establish paternity and obtain child support, and concluded the limited multiple representation is justified, with both clients fully advised.

Currency note

This opinion was issued in 1983, before Wisconsin's July 1, 2007 adoption of the revised Rules of Professional Conduct for Attorneys (the state's Ethics 2000 update), and it analyzes conduct under the former Code. Concurrent representation of multiple clients is now governed by SCR 20:1.7 / Model Rule 1.7, which requires informed consent confirmed in writing where a consentable conflict exists. 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 Treat this page as historical context, not current guidance.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 corporation counsel for the state in a paternity action also represent the mother?

A: The committee concluded yes, provided the mother is advised at the outset of counsel's primary duty to the state and the scope of the representation.

Q: Why did the committee allow the dual representation?

A: The committee found the interests of the state and the mother substantially the same, to establish paternity and obtain child support, so the limited multiple representation was justified.

Q: What concern did the committee flag about this kind of client?

A: The committee noted clients in a poverty group may acquiesce in the representation feeling they have no choice while worrying they lack independent representation, which is why disclosure at the outset matters.

Background and rules framework

The opinion interpreted the former Code's requirements of undivided professional judgment (SCR 20.23(1)) and careful evaluation of multiple representation (SCR 20.23(3)(b)). Concurrent conflicts are now governed by SCR 20:1.7 / Model Rule 1.7.

Citations and references

Rules of Professional Conduct:

• Wis. SCR 20.23(1), 20.23(3)(b) / Model Rule 1.7 (independent judgment; multiple representation) (former Code provisions)

Statutes:

• 42 U.S.C.A. sec. 602 (1981) (AFDC cooperation in establishing paternity)

Other opinions cited:

• ABA Formal Opinions 345 (July 13, 1979) and 55 (1931); ABA Informal Opinion 1111 (June 18, 1969)

See also

• WI Ethics Op. E-92-5: Corporation Counsel in Child Support Cases
• WI Ethics Op. E-86-11: IV-D Director Conflicts in Support Proceedings
• WI Ethics Op. E-99-1: Representing Both Insurers and Insureds

Source

• Landing page: https://www.wisbar.org/formembers/ethics/pages/formal-opinions.aspx
• Original PDF: https://www.wisbar.org/formembers/ethics/Ethics%20Opinions/E-83-17.pdf