Ethics Opinion 240
Ethical Obligations of D.C. 代表社会保障法第IV-D条案件的监护父母的公司法律顾问靠谱的滚球平台
Under Title IV of the Social Security Act of 1975, the District of Columbia Corporation Counsel provides legal assistance for the Child Support Enforcement Program mandated by Congress. Pursuant to this statute, D.C. Corporation Counsel represents both individual petitioners and the Government in actions against non-supporting spouses. (当政府被赋予监护父母获得子女抚养费的权利，作为监护父母根据援助有受抚养子女家庭方案领取福利的条件时，政府就参与进来了.)
In response to an inquiry by D.C. Corporation Counsel, 本意见探讨了在此类陈述过程中可能出现的各种潜在道德冲突. In particular, D.C. Corporation Counsel should be concerned with several possible ethical difficulties. First, Corporation Counsel should make sure each petitioner knows both when he or she is, or is not, a client and what the consequences of not being a client are. Second, 当公司法律顾问发现它代表两个请愿人反对同一被告时, it is advisable under Rule 1.7 to have two different lawyers represent the two petitioners and to take measures to keep the two attorneys from sharing information. Third, when shifts in child custody occur, care must be taken to analyze who was the client, who is now the client, and whether waivers must be obtained under Rule 1.9. In general, given the complexities involved in this form of representation, 公司法律顾问最好指派一名“道德顾问”，就代表IV-D请愿者可能出现的各种道德困境向IV-D靠谱的滚球平台提供建议，并尽量减少潜在的冲突.
Applicable Rules
- Rule 1.6 (Confidentiality of Information)
- Rule 1.7 (Conflict of Interest: General Rule)
- Rule 1.9 (Conflict of Interest: Former Client)
- Rule 1.10 (Imputed Disqualification)
- Rule 4.3 (Dealing with Unrepresented Persons)
Inquiry
Under Title IV-D of the Social Security Act of 1975, the states, including the District of Columbia, are required to provide child support enforcement services to complement their Aid to Families with Dependent Children (AFDC) program.1 Specifically, the states are required to maintain a child support program that provides four basic services: (1) locating absent parents, (2) establishing paternity, (3) obtaining child support orders, and (4) enforcing support obligations owed by absent parents to their children and (if applicable) former spouse. These services are provided free of charge to AFDC recipients, who must assign their child support rights to the welfare agency and must agree to cooperate with the agency.2 For a nominal fee, 这些服务也必须提供给没有资格获得儿童福利金的监护父母,3 In the District, the fee is $5.00.4
The current inquiry comes from the Office of the Corporation Counsel, Civil Division, Child Support Section, which provides the legal assistance required for the child support enforcement program.5 The concern of the inquirer relates to the ethical obligations owed by its attorneys. Specifically, who is the client of a IV-D attorney, what obligations are owed to non-clients, and how can conflicts of interest be avoided? 回答这些问题需要了解IV-D靠谱的滚球平台之间的相互作用, the IV-D agency, and custodial parents (hereinafter referred to as "petitioners").
A IV-D attorney may be assigned to handle any of these types of cases. Each situation may raise difficult questions as to the duties and responsibilities of a IV-D attorney vis-à-vis his employer (the government), the petitioner, and the noncustodial parent. The types of complexities that may arise include, inter alia, (1) the possibility of one IV-D attorney representing two petitioners against the same noncustodial parent; (2) a IV-D attorney representing a former obligor against a former aid recipient after custody has switched; and (3) a IV-D attorney representing a current AFDC recipient who previously utilized the agency's services as a non-AFDC recipient and vice-versa.
Addressing the various potential ethical issues that may arise requires an answer to the question: "Who is the client?" Generally, the Rules of Professional Conduct do not define who is the client and rely on outside substantive law to determine whether a client-lawyer relationship exists.8 The one exception is Rule 1.6(i) which provides that the "client of the government lawyer is the agency that employs the lawyer unless expressly provided to the contrary by appropriate law, regulation, or order." Comment 36, however, 认识到在某些情况下，政府靠谱的滚球平台被指派向个人提供咨询时，可能会明确表明个人负有直接的保密义务.
Recognizing the various categories that can arise with IV-D actions, the Office of Corporation Counsel has attempted to answer "who is the client" in a policy statement entitled "Policy Statement No. 1":
The client is the petitioner in all non-AFDC cases. The client is the Department of Human Services in all AFDC cases. If a non-AFDC client becomes a recipient of public assistance, the client becomes the Department of Human Services; if an AFDC recipient is removed from public assistance, the Department of Human Services remains the client until all arrears are paid to the Department; after full payment, the custodian of the minor child/ren becomes the client.9
For purposes of this opinion, we accept the Corporation Counsel's definition.10
根据这个定义，我们现在必须解决可能出现的各种潜在的伦理问题. Since it is neither possible nor practical to anticipate and answer all conceivable ethical problems that can occur, this opinion will try to address the most common and most difficult.
Discussion
Before we examine the various fact patterns that may develop, we note that it is our understanding that at present the Government maintains the Policy Statement simply as an internal document that is not discussed with or distributed to petitioners. 特别是，政府没有向请愿人表明它认为谁是委托人. To the extent this is still the practice, we believe that it is a mistake; in particular, it does not assure compliance with the Rules of Professional Conduct. As the following discussion will indicate, the IV-D attorney must make sure that, in all situations, the petitioner knows whether or not she [or he] is being considered the client.11
A. Confidential Information
(1) AFDC Recipient
在政策声明中，这种情况下的客户是人类服务部. The problem is that the petitioner may not know this. Thus, it is possible that the petitioner, thinking that the IV-D Attorney is her attorney, may reveal confidences concerning other sources of income. She may believe that the confidence is protected by the attorney-client privilege. In reality, however, she is simply an unrepresented person.
What can and should a IV-D lawyer do to avoid misleading a petitioner? 靠谱的滚球平台必须表明他或她代表的是政府，而不是请愿人. Rule 4.3(a) requires that an attorney not give advice to an unrepresented person if that person's interests might conflict with the interests of the attorney's clients.12 Rule 4.3(b)要求靠谱的滚球平台不得向无代理人声明或暗示其无利害关系，即使该无代理人与靠谱的滚球平台的客户没有利益冲突.13 Furthermore, it requires that when a 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." Hence, 即使受援者或前受援者与AFDC机构没有实际冲突, a IV-D attorney is still obliged to inform the petitioner that the attorney represents only the interests of the state, not the custodial parent.
Giving the Policy Statement to the petitioner is therefore essential. But it is only a minimum. The IV-D attorney must make sure the petitioner understands the potential consequences of not being the client. Failure to fully apprise the petitioner may require that the communication be treated as if a client-lawyer relationship existed.14
(2) Non-AFDC Petitioner
Here there should be no problem with confidential information. The Corporation Counsel says that in this context the petitioner is the client. Thus, there is attorney-client privilege. There is no question that the attorney must competently represent the petitioner and protect all confidences.
(3) Former AFDC Recipient—Now off AFDC but Still in Arrears
在这个类别中，政策声明说，人类服务部是客户. Thus, the analysis here is the same as in the first category, an AFDC petitioner. The critical question is whether the petitioner understands that this lawyer is not her lawyer and any confidences she reveals may be disclosed.
B. Two Petitioners Seeking Support From Same Respondent15
(1) Both Are Non-AFDC Recipients
Here both petitioners are clients of Corporation Counsel and having one lawyer represent both may present a conflict under Rule 1.7. Rule 1.7(a), where applicable, is an absolute bar, 禁止靠谱的滚球平台就某一立场为客户辩护，“如果该立场与所代理的另一客户就同一靠谱的滚球平台所持立场所采取的立场相反”."16 不清楚两个请愿人对同一被告的诉讼是否属于“同一事项”." The fundamental questions in each proceeding—whether this respondent is the parent of each of the children, what are the financial needs of each child—are different. 但也可能存在一些共同的问题，例如答辩人可用的财政资源. Moreover, 鉴于将这类事宜联合安排给同一位聆讯专员处理的惯例, 这两种行为被恰当地贴上“同一件事”的标签当然是有争议的." If that is the case, Rule 1.7(a) prohibits one lawyer from representing two petitioners against the same respondent, if the representation requires the lawyer to take adverse positions for each petitioner.
But even if one concludes that the actions of the two petitioners against the same respondent are not "the same matter" and that the more discretionary rule of 1.7(b) is applicable, the committee believes that, in general, it will be very difficult for one lawyer to adequately represent two petitioners against the same respondent. Rule 1.7(b) is not an absolute bar.17 It is waivable provided that the conditions of 1.7(c) are met. Rule 1.7(c) provides:
A lawyer may represent a client with respect to a matter in the circumstances described in paragraph (b) above if: (1) each potentially affected client provides consent to such representation after full disclosure of the existence and nature of the possible conflict and the possible adverse consequences of such representation; and (2) the lawyer is able to comply with all other applicable rules with respect to such representation.
Current agency practice, once it becomes known that Corporation Counsel is representing two petitioners against the same respondent, 是通知双方请愿人，并让他们签署一份名为“利益冲突弃权书”的表格." See Appendix I. We do not believe this waiver is sufficient to satisfy the requirements of Rule 1.7(c). At a minimum, Corporation Counsel should inform the petitioners of the risk of having one lawyer represent two potentially adverse petitioners. In addition, Corporation Counsel should also inform the petitioners of the right, described below, to have another IV-D attorney from the Corporation Counsel as their representative. Finally, someone in the office of Corporation Counsel, such as a specially designated Ethics Advisor, 是否应该审查情况以确保上访者是否真的想放弃他们的权利, the lawyer can, in fact, comply with "all other applicable rules" if he or she represents two different petitioners against the same parent.
As suggested above, the Committee believes that it is unlikely that one attorney will be able to adequately represent two petitioners against the same respondent. As noted, the practice is to schedule all cases against one respondent together. If, in that hearing, it is necessary for the lawyer representing petitioner A to make arguments that are adverse to the interests of petitioner B, we believe that it will be virtually impossible for the lawyer to comply with Rule 1.7(c)要求靠谱的滚球平台能够遵守所有适用的代理规则. If, for example, 请愿人A辩称，被告(被指控的父亲)不是请愿人B孩子的父亲, we do not see how one lawyer can represent both petitioners "zealously and diligently."
But this does not mean that the petitioners must then be deprived of representation or forced to pay significant fees for legal services. As suggested supra, 即使一个靠谱的滚球平台不能充分代表两个不同的请愿人反对同一父母, it is possible that another attorney in the Office of Corporation Counsel may be able to represent the second petitioner. The question is whether, under the Rules, the disqualification of one attorney vicariously disqualifies all the attorneys in the Office of Corporation Counsel.
Rule 1.10 provides for imputed disqualification in a variety of circumstances but Comment 1 says that the Rule does not apply to a government agency.18 Thus, when two petitioners cannot or do not waive their right to separate counsel, 该评论表明，他们可能在同一办公室由两名不同的靠谱的滚球平台代表. So long as Corporation Counsel makes sure that the second attorney does not talk to the first and does not have access to the first attorney's files, 我们认为没有任何规定禁止第二位靠谱的滚球平台代表第二位请愿人.19
(2) Both Petitioners Are AFDC Recipients
In this category, the client is the Department, not either of the petitioners. Thus, while there may appear to be a conflict, in fact there is none and Corporation Counsel need do nothing special in this case.
(3) One Petitioner Is AFDC and the Other Is Not
Here the Corporation Counsel is representing the private petitioner in the one case and the Department of Human Services in the other. There is some danger that the lawyer will favor the Department over the petitioner. The applicable rule is 1.7(b) and that provides that the attorney may proceed if he or she gets the consent of both the petitioner and the Department. Rule 1.7(c) defines the nature of the consent required. If the non-AFDC petitioner does not consent, it may be possible under Rule 1.10, comment 1, for two different attorneys in the Office to represent the two petitioners, as discussed above.
C. Custody Switches—Former Obligor Obtains Custody of the Child and Seeks Child Support From Former Petitioner Who Had Had Custody but Has Lost It
(1) Both Are AFDC Recipients
In this category, 司法部一开始是当事人，即使孩子的监护权发生了变化，也仍然是当事人. Again, the critical issue is that the two people understand that (a) at no time is either one the client and (b) communications are not privileged.
(2) Neither Is an AFDC Recipient
In this situation, the first petitioner was the client. Once he or she lost custody and the other parent sought help, the other parent would become the client. In general, the Ethical Rules would give the first client the right to veto the representation of the second petitioner. Rule 1.第9条规定，“曾在某一事项中代表客户的靠谱的滚球平台，此后不得在同一事项或实质性相关事项中代表另一人，而该人的利益与前客户的利益有重大不利关系，除非前客户在咨询后同意。." Thus, it would seem that, unless the first petitioner consents, the same attorney should not represent the other parent. 但这是否意味着公司的所有靠谱的滚球平台都是不合格的呢? As noted above, Rule 1.10 does not apply to government agencies. 豁免的理由似乎是这样的取消资格会削弱政府. Therefore, we believe the Rules permit Corporation Counsel to represent the second parent, provided no exchange of information occurs between the two attorneys.
(3) One Is an AFDC Recipient and the Other Is Not
如果最初的请愿人不在AFDC上，那么该请愿人就是IV-D靠谱的滚球平台的客户. Once that person is no longer the custodial parent and a IV-D petitioner, and the other parent, on AFDC, becomes the IV-D petitioner, the Department becomes the client. In this situation, Rule 1.第9条似乎赋予了第一请愿人否决司法部靠谱的滚球平台代表的权利. Therefore in this situation as well as the previous one, we believe that, if the first petitioner does not agree to the attorney's representing the Department, the Rules require that Corporation Counsel provide the Department with another attorney.
If the initial petitioner was on AFDC, then he or she was not the client. Under Rule 1.9, there is no veto right for the first petitioner. Thus, it would appear that Corporation Counsel can represent the other parent, at least if the first petitioner was aware that she or he was never the client.
D. Department Seeking Money for Petitioner and Arrears for Itself
A potential conflict can arise here between the Department's interest in obtaining the arrears it is owed and the petitioner's interest in obtaining her money. 因为在请愿人目前的需要得到满足之前，政府拿不到钱.20 the government has an incentive to seek at least enough money to cover both the petitioner's needs and the arrearage. 但政府可能没有动力去寻求更多. 政策声明规定，在这一类别中，人类服务部是客户. The problem, however, is that the petitioner may not realize that and may not understand that if she wants to seek additional moneys she may have to go outside the system. So long as she is apprised of that, however, the potential conflict seems to be avoided.
E. IV-D Attorney Representing a Current AFDC Recipient Who Previously Utilized the Agency's Services as a Non-AFDC Recipient and Vice-Versa.
当请愿人从AFDC接受者变为无欠款的非AFDC请愿人时, the petitioner moves from not being a client to being a client. Movement in that direction seems to raise no new ethical dilemmas.
But movement in the other direction—from client to non-client—may present problems. Here the attorney moves from representing the petitioner to representing the government. This suggests the relevance of Rule 1.9. Does that mean that the petitioner would acquire the power to veto the attorney's representation of the government? It seems that Rule 1.9, read in conjunction with Rule 1.只要求在公司法律顾问中换一个新的靠谱的滚球平台代表政府. If, however, the former client consents under Rule 1.9, the same IV-D lawyer can represent the government.
Conclusion
上述并不是对所有可能出现的伦理困境的详尽讨论. It is not possible to anticipate all such dilemmas. 但是，讨论应该提出我们认为对这些问题适当的办法.
The ethical questions that this program generates are difficult. There is ambiguity as to who is the client; moreover, the roles and relationships are complex and constantly changing. It would certainly be easier if every time a potential conflict arises, the petitioner or would-be petitioner would be told to hire another lawyer. But that is unrealistic. Hiring private practitioners is not a viable alternative for most IV-D petitioners. Thus, we must assess these issues with that reality in mind. At the same time, it is essential to realize that the petitioners are frequently not very sophisticated and care must be taken to make sure they are not misled or deceived. Not only must IV-D attorneys make sure that petitioners understand whether or not they are a client with client's privileges; they must also make sure that the petitioners understand what not being a client means.
协助公司法律顾问进行值得赞扬的努力，小心地穿过这片丛林, the Ethics Committee has a suggestion. We believe that it would be helpful if the Office designated a person or persons, such as an Ethics Advisor, 负责处理来自IV-D靠谱的滚球平台和上访者的道德咨询. We believe that many of the potential problems discussed herein can be avoided and/or resolved in if someone within the Office of Corporation Counsel were responsible for 1) alerting lawyers to the ethical complexities that may arise; 2) advising individual lawyers who have questions about their obligations in a particular situation; 3) helping lawyers to provide adequate disclosure to avoid creating de facto lawyer-client relationships as discussed supra in section A(1); 4) screening cases initially to try to avoid having one lawyer represent two petitioners against the same respondent; 5) advising petitioners who are being asked whether they wish to waive their rights under 1.7(b)并确保在符合1 .的条件的情况下指派不同的靠谱的滚球平台.7(c)不能满足，这里讨论的许多潜在问题是可以避免和/或解决的.
Inquiry No. 90-7-35
Adopted: June 15, 1993
1. 42 U.S.C. § 651 et seq. (1988).
2. The assignment is required by statute, 42 U.S.C. § 602(a)(26)(A). The statute also requires the custodial parent, after the assignment of support claims, to cooperate with the IV-D office in establishing and enforcing the claims. 42 U.S.C. § 602(a)(26)(B). Aid recipients are required “to cooperate with the State (i) in establishing the paternity of a child born out of wedlock with respect to whom aid is claimed, and (ii) in obtaining support payments for such applicant and for a child with respect to whom such aid is claimed, or in obtaining any other payments or property due such applicant or such child, unless (in either case) such applicant or recipient is found to have good cause for refusing to cooperate as determined by the State agency. . . .” Id.
3. 42 U.S.C. §654(6)规定“子女抚养或亲子鉴定服务 . . . shall be made available to any individual not otherwise eligible for such services.”
4. Letter from Arlene Robinson to Thomas Flynn, June 28, 1990. Reconfirmed via phone conversation with Arlene Robinson on March 1, 1993.
5. The Child Support Section has recently been moved out of the Civil Division and relocated in the Family Service Division.
6. Roberts, Child Support Enforcement in 1989, 23 Clearinghouse Rev. 1101 (Jan. 1990).
7. 42 U.S.C. § 657(c); 45 C.F.R. § 302.51; 50 Fed. Reg. 19,642 (1985)
8. See Rule 1.6, comment [7].
9. Hereinafter “Policy Statement.“这份政策声明是给靠谱的滚球平台的内部文件，而不是给请愿人的. As we noted below, we believe the statement should be made available to all petitioners.
10. We note that it is consistent with the spare case law on point. See, e.g., Gibson v. Johnson, 35 Ore. Ap. 493 (1978).
11. Obviously a petitioner may be either male or female and, to be accurate, one should continuously use “he or she” in the discussion. However, in the interest of readability and in light of the fact that most petitioners are women, “she” will generally be used.
12. Rule 4.3(a) states that a lawyer shall not “give advice to the unrepresented person other than the advice to secure counsel, if the interests of such person are or have a reasonable possibility of being in conflict with the interests of the lawyer’s client.”
13. Rule 4.3(b) states that a lawyer shall not “state or imply to unrepresented persons whose interests are not in conflict with the interests of the lawyer’s client 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.”
14. See, e.g., A.B.A. Informal Opinion No. 89-1528 (June 5, 1989):
If a client-lawyer relationship exists, information received by the lawyer from the client is protected by Model Rule 1.6 and may not be disclosed to the Director of the IV-D office. If there is no client-lawyer relationship, 除非靠谱的滚球平台未能作出合理努力纠正监护父母对存在客户-靠谱的滚球平台关系的任何误解，否则信息可以披露, as required by Rule 4.3.
15. This was the type of problem that concerned one of the Hearing Commissioners and prompted the present inquiry. An Assistant Corporation Counsel was representing a non-AFDC petitioner and had refused to request an amount of support greater than the amount specified in the Child Support Guidelines. The Commissioner questioned whether the attorney was providing the zealous representation owed his client. 一旦确信拒绝是基于一种评估，即“法律和事实不允许[请愿人]以善意的理由寻求超出《靠谱的滚球平台》的命令”,” the inquiry before Bar Counsel was apparently dropped. 与公司靠谱的滚球平台办公室儿童抚养科代理科长的谈话, Sylvia Larrabee, June 1991. As a result of the inquiry, however, Ms. 当时担任儿童抚养科主任的罗宾逊向该委员会提出了她的请求.
16. Rule 1.7(a)
17. Rule 1.7(a)
Except as permitted by paragraph (c) below, a lawyer shall not represent a client with respect to a matter if: (1) a position to be taken by that client in that matter is adverse to a position taken or to be taken by another client in the same matter; (2) such representation will be or is likely to be adversely affected by representation of another client; (3) representation of another client will be or is likely to be adversely affected by such representation; or (4) the lawyer’s professional judgment on behalf of the client will be or reasonably may be adversely affected by the lawyer’s responsibility to or interests in a third party or the lawyer’s own financial, business, property, or personal interests.
18. Comment 1 provides: “For purposes of [these rules], the term ‘firm’ does not include a government agency or other government entity.” This comment was added because of a recommendation in the Report by the District of Columbia Bar Special Committee on Government Lawyers and the Model Rules of Professional Conduct, known as the “Sims Report.” The committee “concluded that government agencies should be specifically excluded from the definition of ‘firm’ in the Comment, because of the potentially harsh result which would occur if all lawyers in a government lawyer’s agency were disqualified under Rule 1.10.” Sims Report, at 23.
19. We leave it to Corporation Counsel to decide how to assign attorneys in these cases. In making this decision, 我们建议公司法律顾问考虑家庭服务部各科之间的工作和监督关系，这可能会排除从同一科指派两名靠谱的滚球平台的可能性. These include the small size of the section and the likelihood that confidential information might be shared with a common supervisor
20. 45 C.F.R. § 302.51(f)(4) (1989).
