When a county prosecutor brings a paternity or child-support case for the State, can the same prosecutor also represent the mother, and what must the prosecutor tell her?

Plain-English summary

The committee was asked about conflicts of interest that arise when a county prosecutor brings support-enforcement and paternity actions. Rather than rule on each hypothetical, the committee concluded that issuing strict opinions on whether a conflict exists in particular fact patterns could lead to misapplication. It chose instead to state the applicable rules, recite the hypotheticals, and describe the analysis it believed the prosecutor should make.

On the threshold question of who the prosecutor's clients are, the committee concluded that in a paternity action commenced at the request of the Department of Social and Health Services, the prosecutor's first client is the State of Washington (DSHS), because the office is "employed or retained" by DSHS when it accepts the case. The committee added that the mother may become a second client if the prosecutor agrees, expressly or impliedly, to appear for, advise, assist, or defend her, or if the prosecutor receives confidential information from her during the initial interview.

The committee then described the path forward. If the prosecutor tells the mother from the onset that he will not represent her, he may avoid the conflict analysis. Otherwise, the committee recommended that the prosecutor work through a sequence: whether representing the mother would be directly adverse to the State; whether joint representation would adversely affect either client (if so, arrange separate representation); whether the mother has had a reasonable opportunity to seek independent counsel; whether each client will consent in writing after consultation and full disclosure; and whether the mother has resources to retain independent counsel, failing which the prosecutor should advise her of possible court-appointed counsel and take action reasonably practicable to help her secure counsel. The committee closed by noting that the remaining issues mix legal and ethical questions, and that it is restricted from opining on legal questions.

Currency note

This opinion was issued in 1987, before the 2006 revisions to the Washington Rules of Professional Conduct. The version of RPC 1.7 quoted in the opinion differs from the current rule. 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: Who is the prosecutor's client in a DSHS-initiated paternity or support case?

A: The committee concluded the prosecutor's first client is the State of Washington (DSHS), because the office is "employed or retained" by DSHS when it accepts responsibility to prosecute the action.

Q: Does the mother become the prosecutor's client too?

A: She may. The committee said a second attorney-client relationship can form if the prosecutor agrees, expressly or impliedly, to appear for, advise, assist, or defend her, or if the prosecutor receives confidential information from her during the initial interview.

Q: How can a prosecutor avoid the conflict analysis altogether?

A: The committee said that if the prosecutor advises the mother from the onset that he will not represent her in the proceedings, he may avoid the analysis that follows.

Q: What does the prosecutor owe the mother if she is not represented?

A: Under the RPC 4.3 text the committee quoted, the prosecutor must not state or imply that he is disinterested, and must make reasonable efforts to correct any misunderstanding if he knows or reasonably should know that she misunderstands his role.

Background and rules framework

The opinion interprets Washington's RPC 1.7 (conflict of interest, then requiring written consent after consultation and full disclosure) and RPC 4.3 (dealing with an unrepresented person), quoting the text of each as it stood in 1987. These correspond to Model Rules 1.7 and 4.3. The committee also invoked former RPC 1.15(d) (the duty, on declining or terminating, to take steps reasonably practicable to protect a client's interests, corresponding to Model Rule 1.16(d)) for the point that a prosecutor unable to obtain consent should help an unrepresented mother secure court-appointed counsel. Because the Rules do not define "client," the committee adopted the Black's Law Dictionary definition, including its coverage of a person who discloses confidential matters while seeking professional aid, whether or not the lawyer is employed.

Citations and references

Rules of Professional Conduct:

• Washington RPC 1.7 (conflict of interest), corresponding to Model Rule 1.7.
• Washington RPC 4.3 (dealing with an unrepresented person), corresponding to Model Rule 4.3.
• Washington RPC 1.15(d) (steps reasonably practicable to protect a client's interests), corresponding to Model Rule 1.16(d).

Statutes:

• RCW 74.20.040(2) (DSHS authority to accept support-service applications and act to establish or enforce support obligations).
• RCW 26.20.030 (criminal non-support).

Other authority referenced:

• Black's Law Dictionary (definition of "client" adopted by the committee).

See also

• WSBA Ethics Op. 916: prosecutor's conflict collecting child support for two claimants
• WSBA Ethics Op. 1020: prosecutor advice to prospective witnesses
• ABA Formal Op. 97-405: conflicts in representing government entities

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=45

Original opinion text

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

Advisory Opinion: 934
Year Issued: 1987
RPC(s): RPC 1.7; 4.3; 1.15(d)
Subject: Conflict of interest; prosecutor in support enforcement/paternity proceedings

This committee has been asked to provide an opinion on conflicts of interest that appear in situations that may occur in support enforcement and paternity actions commenced by a county prosecutor. The committee has received comment from prosecutors and from public defender associations on the issues that exist. The committee is impressed by the apparently large number of cases routinely handled by prosecutors where one or more of the parties in the proceeding may be relying on the prosecutor's expertise in determining whether to accept negotiated terms of settlement. Likewise, the committee recognizes the significant public interest at stake in the proceedings to establish support obligations and secure payment in a practical and expedient manner.

It is the committee's feeling that issuance of strict opinions on the existence or lack of existence of conflicts in the hypothetical fact situations presented may lead to misapplication of the committee's opinion. The better response, in the opinion of the committee, is to set forth the applicable rules; the hypotheticals presented; and a description of the analysis that the committee believes should be made by the prosecutor involved in consideration of the potential conflicts.

The hypotheticals submitted are as follows:

Tracy is an unwed mother of two. She is currently receiving Public Assistance for her children. As a condition of receiving Public Assistance, she has assigned all her child support rights to the State of Washington (D.S.H.S.). She named Bob as the putative father of her children and D.S.H.S has sent the case to the prosecutor's office under a cooperative agreement, asking it to establish paternity and obtain court ordered child support.

Bob appears through his attorney. He admits paternity but denies owing any back support for Public Assistance already paid to Tracy for the children because he claims he, not Tracy, had physical custody of the children during most of the time Tracy received Public Assistance. He also claims he paid support money directly to Tracy while she was on Public Assistance. Tracy denies both of these allegations.

Tracy, in a panic, decides to meet with Bob's attorney in an attempt to "settle out of court." The Deputy Prosecuting Attorney advises her not to meet with Bob's attorney, but to hire her own attorney. She ignores the advice and confesses all to Bob's attorney. Bob's attorney then uses her confessions in responsive pleadings which are designed to convince the court that his client does not owe a duty of reimbursement for Public Assistance paid.

Shawna is an unwed mother of one. She received Public Assistance for her child from 1969 through 1984, and has been working at K-Mart since then, earning $4.25 per hour. The State filed a paternity suit in 1983 against Rick, whom she named as the putative father. Rick hired a lawyer and denied paternity. The case is set for trial in 1986. Shawna has signed up through D.S.H.S. for what the State calls "451 services." These services authorize D.S.H.S. to collect support on Shawna's behalf. The D.S.H.S agreement does not authorize the Deputy Prosecuting Attorney to act as Shawna's attorney. The Deputy Prosecuting Attorney's authority derives from RCW 74.20.040 (2) as amended, which reads: "The [D.S.H.S.] secretary may accept applications for support services on behalf of persons who are not recipients of Public Assistance and may take action in appropriate cases to establish or enforce support obligations against the parent or other persons owing a duty to pay moneys."

The issues at trial will be paternity, reimbursement for past support owed to the State and to Shawna, current support owed to Shawna, custody and visitation. The State is seeking arrears of over $10,000.00. Shawna wants the maximum current support.

Doris is a divorced mother of three. Her divorce decree gives her custody of the children and orders her ex-husband to pay $450.00 per month in child support. Doris is not on Public Assistance. Her ex-husband has not paid support. Both live in the county. The Office of Support Enforcement sends the case to the prosecutor for filing of criminal charges under RCW 26.20.030. Doris has signed an agreement with Support Enforcement which authorizes D.S.H.S. to collect support on Doris's behalf. There is no agreement authorizing the Prosecutor to act as Doris's attorney. The Prosecutor sends a letter to Doris's ex-husband informing that he must begin paying current support and a lump sum of accrued support arrears or else criminal non-support charges will be filed against him.

Applicable rules of professional conduct are as follows:

Rule 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.

Rule 1.7 Conflict of Interests: (a) A lawyer shall not represent a client if the representation of that client will be directly adverse to another client, unless: (1) A lawyer presumably believes the representation will not adversely affect the relationship with the other client; and (2) Each client consents in writing after consultation and a full disclosure of the material facts (following authorization from the other client to make such a disclosure). (b) A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer's responsibilities to another client or to a third person or by the lawyer's own interests, unless: (1) The lawyer reasonably believes the representation will not be adversely affected; (2) The client consents in writing after consultation and a full disclosure of the material facts (following authorization from the other client to make such a disclosure). When representation of multiple clients in a single matter is undertaken, the consultation shall include explanation of the implications of the common representation and the advantages and risks involved.

The Rules of Professional Conduct do not define "Client." The definition in Black's Law Dictionary is commonly accepted and provides: "Client. A person who employs or retains an attorney, or counsellor, to appear for him in courts, advise, assist, and defend him in legal proceedings, and to act for him in any legal business . . . It should include one who disclosed confidential matters to attorney while seeking professional aid, whether attorney was employed or not.

In the context of a paternity action commenced at the request of the Department of Social and Health Services, the prosecutor's first client is the State of Washington, Department of Social and Health Services. Clearly the prosecutor is "employed or retained" by D.S.H.S. when his office accepts (either voluntarily or by compulsion of the law) the responsibility to prosecute the action.

The prosecutor's second client may be the natural mother is the prosecutor agrees, impliedly or expressly, to appear for her in court; advise, assist or defend her in the proceedings; or act for her in the proceeding. Additionally the prosecutor may form an attorney/client relationship if he receives confidential information in the process of the initial interview with the natural mother.

If the prosecutor advises the natural mother from the onset that he will not represent her in the proceedings, he may avoid the analysis that follows. Otherwise, the committee recommends that in each of the above hypotheticals, at a minimum, the prosecutor should undertake the following analysis: (1) Will the representation of the mother be directly adverse to the attorney's representation of his other client (D.S.H.S., O.S.E., etc.). If so, then: (a) Will the representation of either the mother or the other client of the attorney be adversely affected by the joint representation by the attorney? If so, separate representation should be arranged. If not, then: (b) Has the mother been given a reasonable opportunity to seek advice of independent counsel? If not, the potential conflicts should be explained and such opportunity should be provided. The prosecutor should obtain authority, if not already received, to disclose the material facts and interests of his other clients. The mother should be fully advised of the attorney's other clients and their respective interests in the litigation.

(2) Will each of the clients consent in writing after consultation and a full disclosure of the material facts? If so, such consents should be obtained before the representation continues.

(3) Does the client have resources with which to retain independent counsel in the event consent is not obtained? If not, then the attorney should advise the client of the possible availability of private counsel appointed by the court and take such action as is reasonably practicable to assist the client in securing such counsel. (RPC 1.15 [d]).

Other issues remaining in the hypotheticals are in many cases a mixture of legal questions and ethical questions. This Committee is restricted from giving opinions as to legal questions.