In Kentucky, may a lawyer present to the court a child-support agreement that deviates below the guidelines when the client receives public assistance?

Plain-English summary

The opinion arose from a hypothetical at a 1995 KBA Convention session on volunteer divorce work: an AFDC client wanted to agree to $45 per week in child support, below the roughly $85 the guidelines called for, so she could keep her medical card. The Committee, noting that its chairman had initially given the wrong answer and wished to make amends, concluded the lawyer may not present that agreement to the court.

The Committee reasoned that KRS 403.211(3) prohibits any deviation from the child-support guidelines when a parent receives public assistance. Because the agreement was prohibited by law, the lawyer could not counsel or assist the client in that course of action and had to inform the client of the relevant limits on the lawyer's conduct (Rules 1.2(d) and (e)). The Committee also pointed to Rule 3.3(a)(2), under which a lawyer must not knowingly fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a fraud on the tribunal.

Currency note

This opinion was issued in 1995 and predates the Kentucky Supreme Court's substantial 2009 revisions to the Rules of Professional Conduct (SCR 3.130), as the opinion's own prefatory note states. The opinion refers to Rule 1.2(e), which the bar notes was deleted with the substance moved to amended Rule 1.4(a)(5), and to an amended Rule 3.3. Treat this page as historical context, not current guidance. Verify against the current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Could a Kentucky lawyer present a below-guideline child-support agreement for a client on public assistance?

A: No. The Committee concluded the agreement was prohibited by KRS 403.211(3), so the lawyer could not counsel, assist, or present it.

Q: Why did the statute matter to the ethics analysis?

A: Per the opinion, because the agreement was prohibited by law, Rule 1.2(d) barred the lawyer from assisting it, and Rule 3.3 barred failing to disclose a material fact needed to avoid a fraud on the tribunal.

Q: What did the lawyer owe the client in that situation?

A: The Committee stated the lawyer had to inform the client about the relevant limits on the lawyer's conduct under Rule 1.2.

Background and rules framework

The opinion interprets KRPC 1.2(d) and (e) (a lawyer may not counsel or assist a client in conduct the lawyer knows is criminal or fraudulent, or otherwise prohibited; Model Rule 1.2) and KRPC 3.3(a)(2) (candor toward the tribunal; Model Rule 3.3), against KRS 403.211(3), which bars deviation from the child-support guidelines in public-assistance cases.

Citations and references

Rules of Professional Conduct:

• MR 1.2 / KRPC 1.2(d), (e) (limits on assisting prohibited conduct)
• MR 3.3 / KRPC 3.3(a)(2) (candor toward the tribunal)

Statutes:

• KRS 403.211(3) (no deviation from child-support guidelines when a parent receives public assistance)

Other opinions cited:

• (Secondary authority) Graham & Keller, Kentucky Domestic Relations Law 23.07(D)

See also

• KBA Ethics Op. E-383: A Lawyer's Duty to Pay Third-Party Service Providers and to Honor Third-Party Claims to Client Funds
• KBA Ethics Op. E-385: Legal-Aid Referrals From Nonprofit Service Organizations

Source

• Landing page: https://kybar.org/For-Members/Rules-Ethics-Information/Ethics-Opinions
• Original PDF: https://kybar.org/Portals/0/Admin/Ethics%20Opinions/KBA_E-384.pdf

Original opinion text

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

Kentucky Bar Association
Ethics Opinion KBA E-384
Issued: July 1995

Since the adoption of the Rules of Professional Conduct in 1990, the Kentucky Supreme Court has adopted various amendments, and made substantial revisions in 2009. For example, this opinion refers to Rule 1.2(e), which was deleted and the substance was moved to amended Rule 1.4(a)(5), and Rule 3.3(2), which was amended. Lawyers should consult the current version of the rules and comments, SCR 3.130 (available at http://www.kybar.org), before relying on this opinion.

Question:

“Your AFDC client’s spouse should be paying $85.00 per week child support under the [child support] guidelines. This puts [the client] wife over the limit for the medical card. She [the client] wants to agree to $45.00 per week and keep the medical card because her husband can not get medical insurance through his work and she knows she will have to bring him back to court time and time again to force him to pay the children’s medical bills.” May the lawyer present to the court the parties’ agreement settling on $45.00 a week?

Answer:

No.

Reference:

KRS 403.211(3); Kentucky Rules of Professional Conduct 1.2(d) and (e) and 3.3(2). OPINION

This question was among a number of hypotheticals presented at the 1995 KBA Convention - “Practical Approaches for Volunteer Lawyers Doing Divorce Work.” The Chairman of the Committee confesses that he gave the wrong answer to the question and wishes to make amends. To the uninitiated - including lawyers (and the Ethics Chairman) who have never done divorce work, but who might be willing to volunteer to take a case pro bono, the client’s suggestion appears to make a great deal of sense. However, KRS 403.211(3) prohibits any deviation from the guidelines if the case involves a parent receiving public assistance. See Graham & Keller, Kentucky Domestic Relations Law 23.07(D). Since the agreement is prohibited by law, the lawyer may not counsel or assist the client in this course of action and must inform the client regarding the relevant limitations on the lawyer’s conduct. See Rules 1.2(d) and (e). Also relevant is Rule 3.3(a)(2), which states that a lawyer shall not knowingly fail to disclose a material fact to a tribunal when disclosure is necessary to avoid a fraud being perpetrated upon the tribunal.

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Note to Reader
This ethics opinion has been formally adopted by the Board of Governors of the Kentucky Bar Association under the provisions of Kentucky Supreme Court Rule 3.530 (or its predecessor rule). The Rule provides that formal opinions are advisory only.