MODEL RULES OF PROFESSIONAL CONDUCT

1. Ethics for Child Support Attorneys and EmployeesProfessor William ReynoldsUniversity of Maryland School of LawChristin L. Semprebon, Esq.Vermont Office of Child Support

2. It ain’t no sin if you crack a few laws now and then, just so long as you don’t break any. – Mae West

3. MODEL RULES OF PROFESSIONAL CONDUCT • The American Bar Association’s Model Rules of Professional Conduct were adopted by the ABA House of Delegates in 1983 • They serve as the models for the ethics rules for all states except California • The Model Rules set minimum expectations for a lawyer’s professional responsibilities and conduct

4. Professional Misconduct – Rule 8.4 • May include violations or attempts to violate the Rules of Professional Conduct, or assisting others to violate the Rules • Criminal conduct that adversely affects the perception of the lawyer’s honesty, trustworthiness and fitness to practice • Fraud, deceit, misrepresentation and dishonesty all constitute Professional Misconduct • State or imply an ability to improperly influence a government agency or official to achieve results that violate the Rules

5. Reporting Professional Misconduct Rule 8.3 • A lawyer who knows that another lawyer has violated the MRPC must affirmatively report that misconduct to the Court or State Bar • Misconduct must raise substantial question as to lawyer’s honesty, trustworthiness and fitness to practice law • Does not have to report confidential information covered by MRPC 1.6 (attorney – client privilege)

6. PROFESSIONAL RESPONSIBILITIES AND OTHERS • Who do we deal with when maintaining professional responsibilities? • Represented parties and their counsel • Unrepresented parties • The Court • Employers • Banks / Insurance Companies • Non-Attorney IV-D agency staff

7. Dealing with Represented Parties Rule 4.2 • In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.

8. SCENARIO! You are a IV-D attorney at court on an ongoing contempt case with a “frequent flier”. At court, the NCP asks if he may talk to you before the hearing. You take him into a conference room where he candidly tells you how his under the table income is steady enough to meet his own needs, but he has trouble budgeting for child support…

9. SCENARIO! After a 20 minute conversation with the man, he tells you he had better check and see if his court-appointed attorney has arrived yet. This is the first time you have heard he was represented. How do you handle this situation?

10. SCENARIO! • A mother contacts your office asking to be sent a pay history on her child support case because her “attorney needs it for court”. • Do you send her the pay history or decline to communicate because she is represented by counsel?

11. Dealing With Unrepresented Parties – Rule 4.3 • 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. The lawyer shall not give legal advice to an unrepresented person, other than the advice to secure counsel, if the lawyer knows or reasonably should know that the interests of such a person are or have a reasonable possibility of being in conflict with the interests of the client.

12. SCENARIO! You are a IV-D attorney with a responding interstate case from NJ. The NCP is failing to pay current child support for his 25 year old son because he has never moved to modify or terminate the NJ open ended order for current support. Your state holds a court enforcement hearing and CP participates by phone from NJ. The parties can’t stand each other….

13. SCENARIO! After the hearing, you urge the NCP to sign up for state services and request a modification of his NJ order if he cannot afford to pay it, and given the age of his son. The CP pipes up on the speaker phone that she has never hung up, and accuses you - “her attorney” - of creating a conflict of interest. Is she right?

14. SCENARIO! A man comes to your office wanting assistance in filing a paternity complaint and genetic testing request against a mother of a new baby. He completes an application for services and a case is opened. You send a letter to mother informing her of the pending intent of the state to file a parentage complaint….

15. SCENARIO! • Mother shows up at your office distraught, alleging that she is the victim of domestic violence at the hands of this man, and has police reports to prove it. • Does your state continue to pursue the case? If so what, if anything, do you do to protect Mother?

16. Fairness to Opposing PartiesRule 3.4 • No obstructing, concealing or altering evidence with potential evidentiary value • No falsification of evidence or assist a witness in giving false testimony • No frivolous discovery requests, and comply with all pretrial discovery procedures in good faith • Do not give personal opinions in trial • Do not counsel a non-client or a non-agent of the client to refrain from giving relevant information to another party

17. Truthfulness as an AdvocateRule 4.1 In the course of representing a client a lawyer shall not knowingly: (a) make a false statement of material fact or law to a third person; or (b) fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6.

18. SCENARIO! Your state agency equitably divides all payments an NCP makes among multiple cases. Mr. Casanova has 3 different cases with women he rarely pays: Patty Poorhaus receives public assistance, Dora Doormat works and rarely asks for enforcement, and Wilma Warrior files frequent court enforcement actions. You are with Ms. Warrior at Court, and she demands payment in full of her debt…..

19. SCENARIO! Judge orders Casanova to pay Wilma her entire debt of $1,500, or he will go to jail. Do you tell the Judge that if the money is paid through your agency, mother may only receive a third of what was ordered? If so, what do you do if Wilma objects and the Judge tells you an order is an order and the other mothers failed to prosecute their claims?

20. Respect for TribunalRule 3.5 • Do not try to influence Judge or other court official by means prohibited by law • No ex parte communications with the Court during the proceeding unless authorized to do so by law or court order • Engage in conduct intended to disrupt a tribunal

21. Candor Toward TribunalRule 3.3 • A lawyer shall not knowingly make false statements of fact, fail to disclose adverse legal authority controlling in the case, or offer evidence the lawyer knows to be false. • A lawyer may take remedial steps if a client engages in criminal or fraudulent conduct related to the proceedings, including disclosure to the tribunal • In an ex parte proceeding, the lawyer shall inform the tribunal of all material facts, adverse or not, that will enable the tribunal to render an informed decision

22. SCENARIO! You are at a court enforcement hearing where Mr. Axtay has had a recent large intercept take place as a result of a joint federal filing with his new wife, Mrs. Axtay. He testifies in the proceeding that he never worked last year and that Mrs. Axtay was his sole source of support. The intercept is on a 6 month hold pending an injured spouse filing with the IRS…..

23. SCENARIO! Do you tell the Judge that there is a large amount of money on hold that has not yet been disbursed? What if the Judge demands to know the source of the payment before he can render a decision on the case? How do you handle and what can you tell him?

24. Unauthorized Practice of LawRule 5.5 • Only practice in the Jurisdiction that you are authorized to, and do not hold yourself out as a lawyer in a state or jurisdiction to which you have not been admitted, or if you have been disbarred from that jurisdiction • Pro hac vice procedures must be complied with to temporarily practice outside of your jurisdiction

25. Unauthorized Practice of LawRule 5.3 • A lawyer having direct supervisory authority over a non-lawyer employee shall make reasonable efforts to ensure that the employee’s conduct is compatible with professional obligations of the lawyer • Such a lawyer may be responsible if that person violates the Rules of Professional Conduct, especially if the lawyer had knowledge of the conduct, and did not take steps to correct it

26. SCENARIO! You overhear the agency secretary on the phone with a mother, saying, “You don’t have to report direct cash payments as child support. If the payment is not made through the State, then that is considered a gift.” What if you are scheduled to go to court on this case? Would you question mother about these cash payments, or inform the Judge about them?

27. RESPONSIBILITIES TO CLIENTS WHO is the client of the IV-D Attorney? - Is it the custodial parent, the noncustodial parent, the child, the taxpayers, the state agency, or all / none of the above? - To whom do our legal efforts attach? Who gets to call the shots, and whose secrets should we be keeping?

28. Competence and DiligenceRules 1.1 and 1.3 • A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. • A lawyer shall act with reasonable diligence and promptness in representing a client.

29. Competence and Diligence • In State of Arizona v. Garcia, 931 P.2d 427 (1996), the Court declined to award child support arrears based upon the doctrine of laches, b/c it took the State Child Support agency 9 years to brings its claim • In DCF v. JJE, 953 So.2d 659 (2007), the Florida Court threw out a parental termination case when it found the state agency had failed to conduct a diligent search or inquiry to discover Father’s address in order to give him service of notice of the termination proceedings

30. SCENARIO! You have 12 hearings scheduled for tomorrow and your usually reliable paralegal routinely preps your files before Court. On the morning of the hearings you discover that several files are unprepared! Whose fault is this, and what do you tell the Judge when you walk into the hearings without proper forms or case accountings?

31. Client Determines ObjectivesRules 1.2 and 1.13 • A lawyer shall abide by a client's decisions concerning the objectives of representation, and as to whether to settle a matter. • A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent • A lawyer employed or retained by an organization represents the organization acting through its duly authorized constituents.

32. Client Determines Objectives In Cantin v. Young, 742 A.2d 1246 (1999), the Vermont Supreme Court dismissed an appeal filed solely by the Office of Child Support, because the Mother (who had the assistance of OCS, but did not receive public assistance) had not assigned her rights of support collection to the State and there was no authority for the State to file an appeal as an independent party

33. CommunicationRule 1.4 A lawyer shall: • (1) promptly inform the client of any decision or circumstance with respect to which the client's informed consent, as defined in Rule 1.0(e), is required by these Rules; • (2) reasonably consult with the client about the means by which the client's objectives are to be accomplished; • (3) keep the client reasonably informed about the status of the matter; • (4) promptly comply with reasonable requests for information; and • (5) consult with the client about any relevant limitation on the lawyer's conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law. • (b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

34. Loyalty and Conflict of Interest Rule 1.7 • (a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if: (1) the representation of one client will be directly adverse to another client; or (2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer. • (b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if: (1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client; (2) the representation is not prohibited by law; (3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and (4) each affected client gives informed consent, confirmed in writing.

35. ConfidentialityRule 1.6 A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b) of the Rule. The exception to this rule is that a lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary: (1) to prevent reasonably certain death or substantial bodily harm; (2) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another

36. Conflict of Interest? In Ussery v. Gray, 804 S.W.2d 232 (1991), the Texas Court of Appeals held that the state attorney did not need to be disqualified in its paternity suit against a man, who also had the services of the State and with the same state attorney in his pursuit to collect child support from his ex-wife. The father had alleged the Attorney used confidential information against him.

37. SCENARIO! Donald Quimp has 2 child support cases he never pays on. His first ex, Ivanka Quimp, requests the State file an administrative subpoena to obtain his bank records. You file an administrative subpoena citing this case only, and receive a treasure trove of financial information about his $80K bank account…

38. SCENARIO! The next week, the 2nd ex-wife, Marla Quimp, has her attorney contact you to brainstorm about an upcoming court enforcement hearing against Mr. Quimp in that case. Do you alert Marla’s attorney about the bank records? Would you attend the court hearing and try to have them admitted? What if the Donald objects?

39. Conflict of Interest In State of Arkansas Office of Child Support Enforcement v. Terry, 985 S.W.2d 711 (1999), the Supreme Court of Arkansas found that the state child support agency represented the interests of the state, and not either parent, such that it could continue to remain involved in providing child support services after the parents switched custodial roles

40. SCENARIO! Holly Gogh-Lucky, a custodial parent, meets with you to file for a modification of her support order. In her financial affidavit, she discloses a large bank account held with her new spouse, Larry Lucky. She reveals that her husband Larry recently received a large inheritance which has been a true blessing. Larry Lucky’s name rings a bell…..

41. SCENARIO! You suddenly recall that Larry Lucky is also a noncustodial parent in your caseload, who is obligated to pay a nominal support order of $50.00 per month to his ex-wife, b/c he claims extreme poverty as a self-employed carpenter. Would you use Holly Gogh-Lucky’s information to file for an upward modification on her husband’s case?

42. SCENARIO! Dan Dueling is in your child support caseload as both a noncustodial parent who owes child support, and a custodial parent of another minor child. He is not working and has fallen behind on his payments. He fails to attend a child support contempt hearing and a bench warrant issues for his arrest….

43. SCENARIO! Dan Dueling has never been picked up on the warrant, but he contacts your office in his role as the custodial parent in an attempt to collect child support. He would like to make an appointment. Do you make the appointment? Do you contact law enforcement and / or the custodial mother in his case to let them know where he can be found?

44. Special Conflicts Of Interest For Former And Current Government Officers And Employees – Rule 1.11 • A lawyer who has formerly served as a government employee must take special care to avoid conflicts in future private employment because they may have confidential government information about a new private case • A lawyer currently serving as a government employee shall not participate in a matter in which the lawyer participated personally and substantially while in private practice or nongovernmental employment, unless the appropriate government agency gives its informed consent, confirmed in writing

45. Conflicts of Interest In Iowa Supreme Court Disciplinary Board v. Johnson, 728 N.W.2d 199 (2007), a former county attorney who signed petitions in juvenile cases received a public reprimand for then later serving as a guardian ad litem for those same children in her former caseload, despite attempt she had made to avoid conflicts of interest, b/c her new employer had failed to implement an effective “Chinese Wall” to shield her from involvement in her prior cases in which she had substantial involvement.

46. Candid Advice – Rule 2.1 In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client's situation.

47. SCENARIO! A 23 year old unmarried mother comes in as a result of receiving public assistance for her new baby. She is informed that she must name the baby’s father, and she reluctantly reports that her 16 year old neighbor is the father. You realize that he was 15 and she was 22 at the time of conception. This meets the definition of statutory rape in your state….

48. SCENARIO! Do you make the mother complete the parentage forms, or advise her of the criminal statute? What else should you do, and will you let this Mother know the state’s plans? Would you do anything differently if the mother was 15 and had named a 22 year old alleged father?

49. CHILD SUPPORT AGENCY PROBLEMS AND ISSUES • Expectations of parents toward IV-D Attorneys • Role of Child Support staff and non-attorney managers • Sovereign immunity and agency liability • Confidentiality of government information • Bringing your work into your home life (and vice-versa…)

50. Suing the Child Support Agency In Kaplan v. LaBarbera as District Attorney, 58 Cal.App.4th 175 (1997), the California Appellate Court determined that 42 U.S.C.A. sec. 1983 provides for immunity from liability for government prosecutors and child support division acting within the scope of their duties.