Ethical Concerns Facing Title IV-D Attorneys M. Scott Keim Idaho Office of the Attorney General Steven Tobiason Kane & Tobiason, LLP

Model Rules Terminology Rule 1.0 Belief – “can be inferred” Reasonable, Reasonable belief, Reasonably should know – all denote prudence and competence in the lawyer Informed consent – key for confidentiality and conflict issues Confirmed in writing- also key for conflicts

Terminology Rule 1.0 – cont. Firm – keys on mutual access to client information Screened – isolation of a firm member from a particular matter Tribunal –Not limited to a court but more broad and encompassing, similar to the UIFSA definition

Confidentiality – Rule 1.6 General Rule “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)”

Confidentiality – Rule 1.6 Exceptions Paragraph (b) Prevent death or substantial bodily harm Prevent, mitigate or rectify a crime by the client resulting in substantial damages to another which has been furthered by attorney’s representation To get legal advice about attorney’s compliance with ethical rules Establish claims or defenses in civil or criminal litigation involving representation of the client To comply with the law or an order of a court

Conflicts of Interest Current Conflicts - Rule 1.7 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.

Conflicts of Interest – cont. 1 Under rule 1.7 a lawyer may still 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.

Conflicts of Interest – cont. 2 Rule 1.9 Duties to Former Clients Same duty of confidentiality owed after representation is complete A lawyer shall not represent a party in the same or a substantially similar matter adverse to a former client (personal or firm) – unless waived by former client

Conflicts of Interest – cont. 3 Imputed Conflicts – Rule 1.10 Conflicts under Rules 1.7 or 1.9 are imputed to all members of a firm unless based on a personal interest of a specific member that will not materially limit the representation of the client Can be waived by the client with informed consent confirmed in writing

Conflicts of Interest – cont. 4 Government Issues – Rule 1.1 A former government official/employee may not: Represent an individual in a matter that the lawyer personally and substantially participated in unless the government agency waives objection to representation This disqualification is imputed to the lawyer’s firm unless lawyer is “screened” Disclose confidential information learned during course of government work A current government official/employee may not: participate in a matter the lawyer was involved in while in private practice

Third Party Neutrals – Rules 2.2 & 1.12 Definition set forth in Rule 2.2 “A lawyer serves as a third-party neutral when the lawyer assists two or more persons who are not clients of the lawyer to reach a resolution of a dispute or other matter that has arisen between them.” Must inform unrepresented parties: Does not represent their interests Explain role as neutral Conflict Rule set forth in Rule 1.12 Cannot represent anyone in a matter on which the lawyer served as a third party neutral without informed consent from all parties confirmed in writing A lawyer serving as a third-party neutral shall inform unrepresented parties that the lawyer is not representing them. If the lawyer knows or should reasonably know that the parties do not understand the lawyers role in the matter the lawyer shall explain the difference in the role to the unrepresented party.

Meritorious Claims and Contentions – Rule 3.1 “A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law.” Roughly equivalent to the standard for sanctions under Rule 11 of Federal / many state civil rules

Candor and Fairness – Rules 3.3 & 3.4 Candor to Tribunal – Rule 3.3 – A lawyer: Will not make or fail to correct a false statement of law or fact Must disclose controlling legal authority directly adverse to the attorney’s position Must take remedial measures to correct criminal or fraudulent activities relating to pending litigation involving the lawyer Fairness to Opposition – Rule 3.4 - A lawyer: Will not unlawfully obstruct access to evidence Will not falsify evidence or instruct another to do so Will not disobey an order of a court Etc. The not me rule! This is the rule no one ever sees in themselves but always

Dealing With Unrepresented Persons – 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. The toughest challenge often facing IV-D attorneys.

Reporting Professional Misconduct Rule 8.3 A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer's honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority.

Scenario 1 – Who’s line is it anyway? You have been asked by the state IV-D agency to establish a child support order against Dad, Al B. Lobidder, who is the owner of a large paving company that works on a lot of government road projects. You and dad’s attorney have engaged in significant discovery regarding financial issues but are about to resolve the matter. Out of the blue you receive a call from an attorney with the State Attorney General’s Office who is investigating Lobidder for fraud in his government contracts and believes that the discovery and other documents you have gathered may help in his investigation and want to come by your office to review your file. First issue – who is the client based on the way your jurisdiction handles IV-D assignments? In Idaho and most jurisdictions - the IV-D agency is the client and would be the individual who would need to waive the confidentiality issues. Second issue - If the agency is not willing to or believes it is unable to waive the confidentiality privilege you need to look at the exceptions set forth in Rule 1.6(b) a) Prevent death or substantial bodily harm - no b) prevent client from committing a crime ect arising from or furthered by attorney’s representation– no c) Mitigate damage arising from a crime ect of the client arising from or furthered by attorney’s representation– no d) Getting legal advice about ethics – no e) Defending the attorney from claim against attorney f) Comply with other law or court order

Who’s line is it anyway? Other issues Does it matter if the AG sends you a subpoena. What if you are also an AG employee? Do public records laws have any impact on the request? Can you use this as a negotiating point to try and convince Dad to stipulate to the support? What if instead of seeking to establish support you are seeking a downward modification? What if the crime being investigated is related to allegations of child pornography with children essentially the same age and gender as the child in the case? Confidentiality of computerized support enforcement systems – 45 CFR 307.13 California special statute in family code gives special confidentiality allowances Public records requests: is it a public record – is the request directed to the proper person ( you or your public entity client) Negotiating point – barratry statutes Downward modification – Could dad reasonably believe that the attorney represents him

Scenario 2 – Who’s the boss? Six years ago you pursued a paternity action and obtained a support and filiation order in favor of mom, Alyssa Milano, at the request of your state IV-D agency. Last week you were approached by the father, Danny Pintauro, who wants you to represent him in a downward modification because his acting career has gone into the tank, and he thought you were very fair in the paternity proceedings. Can you accept the representation? Scenario 2—Who’s the Boss? Is it a substantially similar matter? Is the representation of Dad adverse to the Department? (what about a downward mod based on a change in income where issues of voluntary underemployment may be an issue?)

Who’s the boss? Other issues Is it okay if you get a written waiver from Alyssa? Instead of coming to you directly Danny requests the mod through the IV-D agency and they ask you to pursue the mod. Danny files the mod on his own, however, Alyssa calls your office claiming you were her lawyer and demands that you represent her again. Other Issues Mom is not the client, so DHW would be the party who had to sign the waiver of conflict. If DHW requests the downward mod it is fine because the old and new client are the same If Alyssa demands you represent her (1) she was not the former client, (2) you can decline representation. One More note Does it matter if the request for representation was made by Mom and the order was “in favor of Mom?” Mom would likely have been required to pay her pro rata share of the medical expenses, would be required to update addresses, etc. so there are obligations placed on both parties.

Scenario 3 – The Devil’s Advocate You are at a meeting of the family law section of the bar and overhear an attorney, Falle N. Angel, who you work with regularly in your IV-D cases telling the bartender how she has instructed her client, the mother in the case, to testify that her current husband owns by himself the small business that they have together in order to get a larger support order. Do you need to tell anyone? Who? When? Rules 3.3 & 3.4 – Clearly involves issues of candor and fairness. Also involves a fairly serious violation of Rule 1.6 confidentiality issues. Rule 8.3 reporting and to who - the appropriate professional authority – not the court Does this create a substantial question of fitness to practice? It is a weighing issue. If it involves issues of client confidentiality Rule 1.6 you still cannot report unless the client consents.

The Devil’s Advocate Other issues Do you warn the attorney and tell her you will inform the court if she presents the testimony you overheard? What if you have appeared in the action on behalf of the IV-D agency? If you have appeared can you use the conversation to cross examine mom? If you warn the attorney and she changes her instructions and does not go forward in this case does it relieve your obligation to report? No because it is the intent that raises the concern about fitness to practice not the end result. It is only through a proper investigation that you can see if this is an isolated instance or a normal and undetected pattern. California special issue – your bar has specifically declined to institute a reporting rule. No reason you could not use the information for cross examination or provide the opposing attorney the information - no confidentiality obligation attaches to this information

Scenario 4 – Ricochet Just last month you finished up a downward modification that had been referred to you by your state’s IV-D agency in which dad, Nota Payer, who did not have an attorney stipulated to the support and provided his tax returns for the past two years. Now you have been asked by the IV-D agency to seek a new paternity order against Dad for a different child with a different mom. Dad is now refusing to provide any income information to either you or mom’s personal attorney. Can you utilize the tax records provided in modification to determine dad’s income in the establishment case? Scenario 4—Ricochet Best course is to prepare a discovery request and seek an order to compel if not provided. Next best option is to ask the court to take notice of the prior support case, which would have support calculations based on his income. Third option is to contact Department of Labor or Tax Comm’n and get records pursuant to MOU If none of the above are successful, can’t be used—IRS Rules

Ricochet Other Issues Does it matter if dad had been represented by an attorney in the prior mod? Who would you need to obtain a waiver from if you wanted to seek one? What if instead of refusing to provide income information, dad testifies that he earns significantly less than his tax records show? What if the tax returns had been provided not directly to you but had been provided to the IV-D agency and entered into it’s automated system? Other Issues Representation by counsel is not an issue, does not affect the validity of the stipulation No need for a waiver, because Dad was not a client If Dad falsifies testimony, utilize cross-examination, ask the Court to take judicial notice of income information in prior case, and, if necessary verify income through the Tax Commission and impeach testimony The individual from DHW who had received and imputed the tax information would need to be called to authenticate the records.