Does a state attorney representing the Department of Revenue in Title IV-D child support cases owe duties of loyalty or confidentiality to the parents involved?

Plain-English summary

The State Attorney for the Eleventh Judicial Circuit asked the committee to review, modify, or withdraw Opinion 92-2 and to address the ethical limits on lawyers in her office who represent the Florida Department of Revenue (DOR) in Title IV-D child support cases. The committee had recently reconsidered and withdrawn Opinion 92-2, and this opinion replaces it. In these cases, assistant state attorneys collect financial and other information from parents, and by statute DOR may later proceed against a parent it previously helped, for example by seeking a downward modification of a support order it once sought to enforce.

The old Opinion 92-2 had reasoned that, although the lawyer represents the agency rather than the parent, a parent who deals closely with the lawyer will reasonably believe the lawyer represents the parent's interests and that information shared will stay confidential, so the lawyer owed the parent "certain ethical duties," including a bar on later "side-switching." The opinion rejects that reasoning in light of later authority. Section 409.2564(5), Florida Statutes, provides that an attorney-client relationship exists only between the Department and its legal services providers. In 2008 the Supreme Court of Florida amended Family Law Rule 12.040 to require the IV-D attorney to file a notice that the attorney represents only the IV-D agency, not the recipient of services. And in Department of Revenue v. Collingwood, 43 So. 3d 952 (Fla. 1st DCA 2010), the First District held there was no conflict because the Department's counsel represents the Department and not either parent.

The opinion concludes that, because the parent is not a client as a matter of law, the lawyer owes the parent none of the obligations premised on a lawyer-client relationship, including loyalty and confidentiality, and there are no ethical limits on the lawyer's representing DOR adverse to a parent the agency previously served. Rule 4-4.3(a) still applies: the lawyer may not state or imply being disinterested, must correct an unrepresented person's misunderstanding of the lawyer's role, and may not give legal advice other than to secure counsel. The committee notes section 90.502(5), Florida Statutes, which treats certain communications to the agency's attorney as confidential and privileged, but states that whether that provision creates a lawyer-client relationship is a legal question beyond the scope of an ethics opinion.

In practice

Under the Florida rule and statutes as they stood at the time of this 2011 opinion, a lawyer assigned to represent DOR in Title IV-D matters represents the Department alone. The opinion makes the controlling point a matter of law: section 409.2564(5) and Family Law Rule 12.040, as confirmed in Collingwood, establish that the parent is not the lawyer's client, so duties of loyalty and confidentiality do not attach and a later adverse proceeding is not a conflict. The opinion holds that Rule 4-4.3(a) continues to govern the lawyer's dealings with the parents as unrepresented persons, requiring the lawyer not to imply disinterestedness and to correct any misunderstanding of the lawyer's role. It treats the effect of the section 90.502(5) privilege statute as a legal question it does not resolve.

Common questions

Q: Does a state attorney handling a IV-D child support case represent the parent?

A: No. The opinion concludes that, by statute and rule, the lawyer represents only the Department of Revenue, not the parent who receives IV-D services.

Q: Can the same office later seek to reduce support for a parent it previously pursued?

A: Yes. Because the parent is not a client, the opinion finds no conflict of interest and no ethical limit on the lawyer's representing DOR adverse to a parent the agency previously served, citing Collingwood.

Q: Does the lawyer owe the parent any duty at all?

A: The opinion holds the lawyer owes no loyalty or confidentiality duty, but Rule 4-4.3(a) still applies: the lawyer cannot imply being disinterested, must correct a misunderstanding of the lawyer's role, and may only advise the parent to secure counsel.

Q: What about the statute making communications to the agency lawyer confidential?

A: The opinion notes section 90.502(5), Florida Statutes, but states that whether it creates a lawyer-client relationship is a legal question beyond the scope of an ethics opinion.

Background and rules framework

The opinion interprets Rule 4-4.3 (dealing with unrepresented persons, Model Rule 4.3) of the Rules Regulating The Florida Bar and withdraws prior Opinion 92-2. It relies on section 409.2564(5), Florida Statutes (attorney-client relationship exists only between the Department and its legal services providers), Family Law Rule of Procedure 12.040, and Department of Revenue v. Collingwood, and notes section 90.502(5) on privilege.

Citations and references

Rules of Professional Conduct:

• Model Rule 4.3 / Fla. Rule 4-4.3 (dealing with unrepresented persons)

Statutes:

• Fla. Stat. § 409.2564(5), (11) (Title IV-D representation; review of support obligations)
• Fla. Stat. § 90.502(5) (confidentiality of communications to the agency attorney)

Cases:

• In re Amendments to Family Law Rules, 995 So. 2d 407 (Fla. 2008), IV-D attorney notice of representation
• Department of Revenue v. Collingwood, 43 So. 3d 952 (Fla. 1st DCA 2010), no conflict where counsel represents the Department, not the parents

Other opinions cited:

• Fla. Ethics Op. 92-2 [withdrawn] (prior view that the lawyer owed the parent ethical duties)

See also

• Florida Bar Op. 09-1: Communicating With a Represented Government Agency

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-11-1/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-11-1.pdf

Original opinion text

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

FLORIDA BAR ETHICS OPINION
OPINION 11-1
September 21, 2011
Advisory ethics opinions are not binding.
Lawyers employed by the State Attorney’s Office assigned to represent the Florida
Department of Revenue in child support cases represent the department, not individual parents,
and owe no duty of confidentiality or loyalty to the individual parents. The lawyer must comply
with rules on dealing with unrepresented persons in dealing with the parents. The impact of
statutes on attorney-client privilege on this issue is a legal question, outside the scope of an
ethics opinion.
RPC: 4-4.3
Opinions: 92-2 [withdrawn]
Cases: In re Amendments to Family Law Rules, 995 So.2d 407 (Fla. 2008); Department
of Revenue v. Collingwood, 43 So. 3d 952 (Fla. 1st DCA 2010)
Statutes: F.S. §§ 409.2564(11); 90.502(5)
Rules of
Procedure: Family Law Rule of Procedure 12.040
The State Attorney for the Eleventh Judicial Circuit of Florida has requested the
Committee to review, modify, or withdraw Ethics Opinion 92-2 and to address the ethical
limitations, if any, placed on individual lawyers in her office when representing the Florida
Department of Revenue (DOR) in Social Security Title IV-D support cases. The Committee
recently reconsidered and withdrew Ethics Opinion 92-2. This opinion replaces it.
By statute, DOR is assigned overall responsibility for administering the Title IV-D child-
support program in Florida. The State Attorney for the Eleventh Judicial Circuit represents DOR
in those matters in Miami-Dade County. This representation involves court cases for the
determination of paternity, establishment of support, modification of support, and enforcement of
support. In the course of this representation, assistant state attorneys collect financial and other
information from the recipients of DOR’s services that might be deemed confidential in a
lawyer-client relationship. Section 409.2564(11), Florida Statutes, requires DOR to review
child-support obligations to determine whether the amounts remain consistent with current
support guidelines and authorizes DOR to seek adjustments when appropriate. Pursuant to this
review process, DOR may find itself proceeding against a parent on whose behalf it previously
had proceeded. For example, DOR may seek to enforce a child-support obligation against a
noncustodial parent and later seek a reduction of that support order on the noncustodial parent’s
behalf.
Section 409.2564(5), Florida Statutes, provides that “[a]n attorney-client relationship
exists only between the department and the legal services providers in all Title IV-D cases.”
In Ethics Opinion 92-2 (1992), the Committee addressed whether a lawyer who
represented the Florida Department of Health and Rehabilitative Services (HRS) in providing
child-support services to a parent and received confidential information from that parent could

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ethically later act adversely to that parent in a matter involving that confidential information.
Although acknowledging that under Florida law the lawyer represented HRS rather than the
parent, the Committee stated the following:
The ethical question presented, however, cannot be answered simply by reference
to the above statute and Rule 4-4.3 [dealing with unrepresented persons]. As a
practical matter, if an attorney who represents HRS in a particular child support
matter deals closely with and acts on behalf of a parent, that parent ordinarily will
believe that the attorney represents the parent’s interests. The parent also will
believe that information he or she discloses to the attorney will remain
confidential and will not be used to his or her disadvantage.
The Committee relied on “the likelihood of [a parent’s] reasonable belief” in opining that
a lawyer who represents HRS in providing child-support services to a parent “owes certain
ethical duties to the parent.” The Committee concluded:
At a minimum, it would be unethical for an attorney who has received
confidential information from one parent to later act adversely to that parent in a
matter involving that confidential information. Such an action would be
tantamount to prohibited “side-switching” in the same or a substantially related
matter.
In 2008, the Supreme Court of Florida adopted proposed amendments to Family Law
Rule of Procedure 12.040, adding subsection (c) addressing the scope of representation. The
Court adopted the DOR proposal regarding representation of the State in child support
enforcement matters, filed as a comment in response to the petition of The Florida Bar’s Family
Law Rules Committee. Subdivision (c)(2) as adopted by the Court provides as follows:
An attorney for the State’s Title IV-D child support enforcement agency who
appears in a family law matter governed by these rules shall file a notice
informing the recipient of Title IV-D services and other parties to the case that the
IV-D attorney represents only the Title IV-D agency and not the recipient of IV-D
services. The notice must state that the IV-D attorney may only address issues
concerning determination of paternity, and establishment, modification, and
enforcement of support obligations. The notice may be incorporated into a
pleading, motion, or other paper filed with the court when the attorney first
appears.
In re Amendments to Family Law Rules, 995 So.2d 407 (Fla. 2008).
More recently, the District Court of Appeal of Florida, First District, addressed this issue
in Department of Revenue v. Collingwood, 43 So. 3d 952 (Fla. 1st DCA 2010). In Collingwood
DOR originally filed a contempt proceeding against the father seeking to enforce a child-support
obligation. DOR later filed a petition seeking to recalculate the father’s support obligation based
on a reduction in income. The mother asked the lower court to prohibit DOR from representing
the father, citing a conflict of interest based on the previous contempt proceeding. The lower

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court granted the mother’s request and directed the father to retain private counsel or proceed pro
se. Id. at 954. The First District reversed, stating:
The [lower] court may have concluded that the department’s action seeking
downward modification was inequitable because the previous action seeking child
support for the mother from the father created a conflict of interest. According to
state statutes and rules, however, the department’s counsel represents the
department and does not represent either parent, so there is no conflict.
Id.
If it was not clear at the time that the Committee issued opinion 92-2, it is clear now:
Because the parent as a matter of law is not a client of the lawyer representing DOR, that lawyer
owes the parent none of the ethical obligations that are premised on the existence of a lawyer-
client relationship, including the obligations of loyalty and confidentiality. Accordingly, there
are no ethical limitations on the lawyer’s representing DOR in its (DOR’s) providing services to
a parent, regardless of a prior representation in which the services were provided to the other
parent.
Rule 4-4.3(a), however, still applies. Rule 4-4.3(a) provides the following:
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.
The Committee is not unmindful of section 90.502(5), Florida Statutes, which provides
the following:
Communications made by a person who seeks or receives services from the
Department of Revenue under the child support enforcement program to the
attorney representing the department shall be confidential and privileged as
provided for in this section. Such communications shall not be disclosed to
anyone other than the agency except as provided for in this section. Such
disclosures shall be protected as if there were an attorney-client relationship
between the attorney for the agency and the person who seeks services from the
department.
Fla. Stat. § 90.502(5) (emphasis added). Although the Committee believes that this
provision does not in itself create a lawyer-client relationship between the lawyer and the
recipient of DOR’s services, its impact is a legal question beyond the scope of an ethics opinion.