When North Carolina's Child Support Enforcement statute says 'the county attorney or an attorney retained by the county and/or State shall represent the State in all proceedings brought under this section' (G.S. 110-135), does that requirement reach only debt-collection actions under 110-135, or also subrogation actions under 110-137?
Plain-English summary
David R. Johnson, Staff Attorney for the North Carolina State Bar, asked a textual question that affected a then-emerging practice: were lay "Title IV-D agents" working in county Departments of Social Services engaged in unauthorized practice of law when they handled child support enforcement actions?
The framing was indirect. The literal question was whether the representation clause in G.S. 110-135 ("the county attorney or an attorney retained by the county and/or State shall represent the State in all proceedings brought under this section") applied beyond G.S. 110-135 itself to other sections of the Child Support Enforcement Act, particularly G.S. 110-137. If the clause reached all State-instituted proceedings under the Act, then State proceedings under any of the relevant sections required attorney representation, and lay IV-D agents could not run those proceedings on their own.
The 1981 AG concluded that the representation clause does reach all State-instituted proceedings under both G.S. 110-135 and G.S. 110-137.
The reasoning is statutory construction in pari materia. The Child Support Enforcement Act (Article 9 of Chapter 110) was originally enacted as a single statute in 1975 (Chapter 827 of the Session Laws). When the legislature later amended G.S. 110-137 in 1977 to authorize the State to pursue support enforcement by way of subrogation to the assigned right of support, it did not also amend the representation clause to cover 110-137. The AG read that as a drafting omission rather than a deliberate carve-out, because the underlying funds in both 110-135 actions and 110-137 actions are the same (debt owed to the State for child support reimbursement), and it would be strange for the representation requirement to depend on the legal theory of recovery rather than the underlying interest at stake.
So State proceedings under either statute require representation by the county attorney or an attorney retained by the county or the State.
Crucially, the AG also clarified what the representation clause does NOT do. It does not police the practice of law generally. It does not say what the IV-D agents working in DSS can or cannot do. It only says who represents the State in the proceedings under those sections. The unauthorized practice of law question is regulated by other statutes, and the State Bar would need to apply those statutes separately to the IV-D agents' specific activities.
Currency note
This opinion was issued in 1981. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. The Child Support Enforcement Act has been amended multiple times since 1981, and the federal Title IV-D framework has evolved significantly. Current questions about who can represent the State or about the scope of lay IV-D agent practice should be addressed to the State Bar and to current DSS legal counsel.
Historical context: what the AG concluded
The opinion's analytical move is classic in pari materia construction. When two statutory provisions are part of one legislative act and address related subjects, they must be read together to give effect to the legislative purpose. The AG cited State v. Harvey, 231 N.C. 1, and Re North Carolina Fire Insurance Rating Bureau, 275 N.C. 15, for the proposition.
The opinion walked through the legislative history. The 1975 act (Chapter 827) created Article 9 as a unified scheme to implement Title IV-D of the federal Social Security Act. Title IV-D required participating states to set up child support enforcement programs targeting absent parents of children receiving public assistance. The State's recovery interest was the reimbursement of AFDC funds spent supporting the children. The structure was a debt-to-the-State framework: the State paid AFDC, the absent parent owed the State for the support, and the State could sue to recover.
The 1977 amendment (Chapter 1185 of the Session Laws of 1977, Second Session 1978) added a subrogation theory. By that time, federal law required states to take a mandatory assignment of the child's right to support as a condition of receiving AFDC. The 1977 amendment recognized that the State could sue on the subrogated assigned right in addition to suing on the debt-to-the-State theory under 110-135. Functionally, both routes produced the same result: the State recovers funds it spent on AFDC.
The representation clause's original text covered proceedings under 110-135. The 1977 amendment did not extend the clause to 110-137. The AG reasoned that the legislature could not have intended different representation rules for the same underlying State recovery, depending only on which legal theory the lawyer chose. The plain-meaning reading would produce an absurd result, so in pari materia construction with the rest of the Act applies.
The opinion's secondary point about the practical operation of the program is useful background. Most counties operated the IV-D program locally under voluntary agreements with the State. A minority of counties did not opt in, and in those counties the State operated the program directly. The 1977 amendment was partly motivated by the need to make the dual-system architecture work, with the State enforcement function operating through retained counsel where county counsel was unavailable or impractical.
The unauthorized practice of law point is a small but important demarcation. The AG declined to interpret G.S. 110-135 as a global rule about who can do legal work in child support enforcement. The statute is narrow: it says who represents the State in proceedings under those sections. Other activities (preparing documents, processing administrative orders, advising clients on procedural questions) are governed by the general unauthorized practice statutes, and the State Bar is the agency that polices them.
Background and statutory framework
Title IV-D of the federal Social Security Act, enacted in 1975, established the Child Support Enforcement Program as a federal-state partnership. States receive federal matching funds for operating IV-D programs that recover child support from absent parents, especially in AFDC cases.
North Carolina implemented Title IV-D in 1975 through Chapter 827 of the Session Laws, which created Article 9 of Chapter 110 (G.S. 110-128 through 110-141, in the original codification). G.S. 110-128 stated the purposes of the Act, including establishment and administration of the child support enforcement program. G.S. 110-129 defined key terms, including "program," which was amended in 1977 to expressly tie the state program to Title IV-D.
G.S. 110-135 set up the State's direct debt-collection right. AFDC payments create a debt to the State equal to the amount of public assistance paid. The State (or a county DSS acting under contract with the State) could sue the absent parent to recover the debt. The last sentence of 110-135, as amended in 1977, said the county attorney or a retained attorney would represent the State in proceedings under the section.
G.S. 110-137 was the subrogation provision. Because federal regulations required AFDC recipients to assign their child support rights to the State, the State could sue as subrogee on the assigned right. The 1977 amendment to 110-137 made this dual-theory architecture explicit.
The interplay between 110-135 and 110-137 was the source of the question. A State enforcement action could be styled as a debt-collection action under 110-135 or a subrogation action under 110-137. The financial recovery is the same. The procedural mechanics might differ, but the State's interest is identical.
Common questions
Could the State proceed in a 110-137 action without an attorney, by relying on the IV-D agent to handle the case?
Per this opinion, no. The representation clause in 110-135 applies to State-instituted proceedings under 110-137 as well, so a State-side attorney must represent the State in those proceedings.
What about proceedings the recipient parent brings on their own behalf, separate from State enforcement?
The representation clause governs State proceedings. A private support action by the recipient is not a State proceeding, so the clause does not apply to it. The recipient may engage their own counsel or proceed pro se under the rules governing private family law actions.
Could a county attorney represent the State without first taking some kind of separate appointment?
The statute names "the county attorney" as one of the authorized representatives. The county attorney's general appointment to advise and represent the county should be sufficient; the State has built representation into the statutory scheme by designating the county attorney as a default representative for State proceedings within the county.
Was the State Bar concerned about specific activities by IV-D agents?
The opinion does not detail the specific activities the State Bar was worried about. Common candidates would have been: preparing court documents, conducting administrative reviews of support obligations, calculating arrears, communicating with absent parents in adversarial postures. Some of these are clerical and not unauthorized practice; others, depending on the level of legal judgment involved, could be. The AG opinion narrowed the question to the representation clause and left the broader unauthorized practice analysis to the State Bar.
Did the AG opinion bind the State Bar?
Not as binding precedent. AG opinions are persuasive authority, not binding rules. The State Bar would use the AG's reading of G.S. 110-135 as part of its broader assessment but would apply its own judgment to the unauthorized practice analysis.
Source
- Landing page: https://ncdoj.gov/opinions/child-support-attorneys-at-law-unauthorized-practice-of-law/
Citations
- G.S. 110-128
- G.S. 110-129
- G.S. 110-130
- G.S. 110-135
- G.S. 110-137
- Chapter 827 of the Session Laws of 1975
- Chapter 1185 of the Session Laws of 1977, Second Session 1978
- State v. Harvey, 231 N.C. 1
- Re North Carolina Fire Insurance Rating Bureau, 275 N.C. 15
Original opinion text
Requested By: Mr. David R. Johnson Staff Attorney The North Carolina State Bar
Question: Does the provision of G.S. 110-135 stating that "(t)he county attorney or an attorney retained by the county and/or State shall represent the State in all proceedings brought under this section", apply to all actions brought under the Child Support Enforcement Act?
Conclusion: The quoted provision applies to all proceedings brought by or on behalf of the State under G.S. 110-135 and G.S. 110-137.
Your inquiry specifically mentions G.S. 110-130, G.S. 110-135 and 110-137. All of these sections were originally promulgated as part of a single act of the General Assembly, Chapter 827 of the Session Laws of 1975, codified as Article 9 of G.S. Chapter 110 (G.S. 110-28 through 110-41). In seeking to discover and give effect to legislative intent, the Act must be construed as a whole. State v. Harvey, 231 N.C. 1. The intent and spirit of the Act are controlling in its construction. Re North Carolina Fire Insurance Rating Bureau, 275 N.C. 15.
G.S. 110-128 enumerates the purposes of the Act, concluding with a purpose ". . . to provide for the establishment and administration of a program of child support enforcement in North Carolina." This has reference to a program contemplated and provided for in Title IV-D of the Social Security Act. This is confirmed by the 1977 Amendment to G.S. 110-129 wherein a definition of the word "program" was established, as follows:
"(4) 'Program' means the Child Support Enforcement Program established and administered pursuant to the provisions of this Article and Title IV-D of the Social Security Act."
The purpose of the Child Support Enforcement (IV-D) Program is to insure that absent parents support their children. If the children are receiving public assistance, the debt of child support is owed to the State by virtue of a required assignment of rights of support. Child support collected for AFDC children is generally retained by the State and treated as reimbursement of AFDC funds. The State distributes this money to county, State and federal governments according to a formula based upon the amount of their respective participation in the financing of the AFDC. Child support collected which is not owed to the State as reimbursement is ultimately paid to the resident parent or caretaker.
The North Carolina program utilizes, where possible, local county-operated child support enforcement agencies. This is accomplished by a voluntary agreement between a participating county and the State child support enforcement agency. While the majority of the counties operate these programs, it has become necessary for State-operated programs to cover a number of counties since it is required that the program be operated State-wide. The State Act was subsequently amended to better accommodate this dual system of program operation. (Chapter 1185 of the Session Laws of 1977, Second Session 1978). The Act as originally written contemplated that the State could pursue reimbursement of public assistance paid for a dependent child by action to recover a debt created directly to it against a responsible parent. Necessary representation in the locality where such an action would have to be brought was assured by requiring that the county attorney represent the State. The 1977 Amendment, as it pertained to G.S. 110-137, made it clear that, in addition to the debt collection provisions of G.S. 110-135, the State could proceed under the theory of subrogation by reason of assignment of the right of child support. The funds which the State might seek to recover in a proceeding utilizing its rights of subrogation would not cease to be the subject of the debt to the State referred to in G.S. 110-135. It would not be reasonable to assume that the General Assembly made provisions concerning attorneys to represent the State, the applicability of which would depend upon the theory under which an action is brought by or on behalf of the State when the relief sought is essentially the same. We are, therefore, of the opinion that the last sentence of G.S. 110-135 (pertaining to representation of the State by an attorney) pertains to proceedings instituted by or on behalf of the State under either G.S. 110-135 or 110-137.
Practical experience in the operation of the State-wide child support enforcement program under the original Act has demonstrated that legal representation by a county attorney in State-instituted proceedings is not always feasible. We believe that the 1977 Amendment to the last sentence of G.S. 110-135 was solely for the purpose of authorizing representation of the State by retained attorneys, as well as county attorneys in recognition of the practical situation.
Your inquiry springs from a question concerning whether certain activities by "Title IV-D agents in the County Department of Social Services" would constitute unlawful practice of law. Significantly, G.S. 110-135 makes the edict regarding legal representation applicable only to "all proceedings brought under this section" (emphasis supplied) as distinguished from any broader concept. This simple, straight-forward language makes it abundantly clear that the General Assembly did not intend thereby to tangentially address the policing of the practice of law which is regulated elsewhere in the General Statutes. The obvious intent of the General Assembly was to provide to the State representation by a county attorney or retained attorney where deemed necessary in this type of action. This conclusion is required notwithstanding the recognition, that, as a practical matter:
- (a) the quoted provision must of necessity apply to both G.S. 110-135 and G.S. 110-137 where representation of the State is involved; and
- (b) by virtue of specific agreements with the State, the counties are in virtually all instances operating as agents of the State so that the provisions dealing with legal representation are applicable.
In short, the purpose of the Article is to facilitate an effective child support enforcement program and not to dictate, beyond the scope of the statutes and case law pertaining specifically to this subject, when the services of an attorney must be used or what constitutes unauthorized practice of law.
Rufus L. Edmisten
Attorney General
William F. Briley
Assistant Attorney General