In Kentucky, does a lawyer handling Title IV-D child-support enforcement for the state have an attorney-client relationship with the party seeking enforcement, even though a statute says there is none?

Plain-English summary

The question arose from KRS 205.712(7), under which a county attorney or other designee contracted to administer Title IV-D child-support enforcement is "deemed to be representing the cabinet" and "does not have an attorney-client relationship" with the applicant. The inquiry asked whether, given that statute, such an attorney has an attorney-client relationship with the party seeking enforcement, so that a conflict of interest might arise in a future enforcement action against that same party.

The Committee concluded the statute is not dispositive. It reasoned that regulation of the legal profession lies with the courts, not the legislature (Turner v. Kentucky Bar Association (Ky. 1998)), and that legislative intrusion is tolerated only as a matter of comity; whether an attorney-client relationship exists for conflict-of-interest analysis is within the judiciary's sphere, and the courts had not adopted the statute's characterization. For ethics purposes, the Committee applied agency and contract principles (KBA E-316): per Lovell v. Winchester (Ky. 1997), the relationship can arise from the parties' conduct when the client reasonably believes or expects the lawyer is undertaking the representation.

Applied to the IV-D setting, the Committee concluded that such an attorney can be found to have an attorney-client relationship with the party seeking services if that party has a reasonable belief or expectation that one exists; because the interactions vary widely, no absolute rule is possible and each situation must be evaluated individually. The Committee added that an attorney wishing to ensure no relationship forms must take steps that would make any such belief unreasonable, fully discussing the lawyer's role and the absence of an attorney-client relationship, including the consequences for confidentiality and privilege.

Currency note

This opinion was issued in 2000 and predates the Kentucky Supreme Court's substantial 2009 revisions to the Rules of Professional Conduct (SCR 3.130). The Kentucky Bar Association notes that the rules are amended periodically and that lawyers should consult the current version before relying on this opinion. Treat this page as historical context, not current guidance.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: Did the statute settle whether a Title IV-D attorney has a client?

A: Per the opinion, no. The Committee concluded KRS 205.712(7) is not dispositive for ethics purposes, because whether an attorney-client relationship exists for conflict analysis is a matter for the courts, which had not adopted the statute's characterization.

Q: How did the opinion say the relationship is determined?

A: By agency and contract principles. Quoting Lovell v. Winchester, the Committee said the relationship can arise from the parties' conduct when the party reasonably believes or expects the lawyer is undertaking the representation.

Q: Is there a single answer for all IV-D attorneys?

A: No. The opinion concluded the interactions vary so much that no absolute rule is possible and each situation must be evaluated individually.

Q: How could such an attorney avoid forming a relationship?

A: The opinion concluded the attorney must take steps making any belief in a relationship unreasonable, fully discussing the lawyer's role and the lack of an attorney-client relationship, including the effect on confidentiality and privilege.

Background and rules framework

The opinion addresses when an attorney-client relationship is formed for purposes of conflict-of-interest analysis under the Kentucky Rules of Professional Conduct (the conflict rules track Model Rule 1.7; SCR 3.130(1.7)). It treats relationship formation as governed by agency and contract principles and by the reasonable expectation of the party, rather than by the statute KRS 205.712(7).

Citations and references

Rules of Professional Conduct:

• MR 1.7 / KRPC 1.7 (conflicts of interest; the rule whose application depends on whether a client relationship exists)

Statutes:

• KRS 205.712(7) (Title IV-D designee deemed to represent the cabinet, not the applicant)

Cases:

• Turner v. Kentucky Bar Association, 980 S.W.2d 560 (Ky. 1998), courts, not the legislature, regulate the profession
• Lovell v. Winchester, 941 S.W.2d 466 (Ky. 1997), attorney-client relationship can arise from the parties' conduct
• Wyoming State Bar v. Riner, 765 P.2d 925 (Wyo. 1988); In re Petrie, 742 P.2d 796 (1987); Slusser v. Billet, 762 P.2d 350 (Wash. Ct. App. 1988): formation of the relationship

Other opinions cited:

• KBA E-316 (1987): agency and contract principles determine the relationship
• Ala. Op. RO-96-02; Mont. Op. 981212: government child-support enforcement attorneys

See also

• KBA Ethics Op. E-412: A Prosecutor's Law Partner Representing Criminal Defendants
• KBA Ethics Op. E-410: Insurance Defense, Reservation of Rights, and Coverage Conflicts

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-414.pdf

Original opinion text

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

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-414
Issued: May 2000

The Rules of Professional Conduct are amended periodically. 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:

A Kentucky statute, Kentucky Revised Statute 205.712(7), states: Where the local county attorney, friend of the court, domestic relations agent, or other designee of the cabinet has been contracted for the purpose of administering child support enforcement pursuant to Title IV-D of the Social Security Act, the contracting official shall be deemed to be representing the cabinet and as such does not have an attorney-client relationship with the applicant who has requested services pursuant to Title IV-D of the Social Security Act nor with any dependent on behalf of the individuals for whom services are sought. Given the existence of this statute, does an attorney who handles child support enforcement matters pursuant to an arrangement with the Cabinet for Families and Children, Child Support Division, have an attorney-client relationship with the parties who seek the enforcement services such that a conflict of interest might exist with regard to future support enforcement actions against that same party?

Answer:

KRS 205.712(7) is not dispositive of the issue of whether an attorney-client relationship exists between an attorney handling child support enforcement matters and a party seeking enforcement services. If a reasonable person would understand that there is an attorney-client relationship, then such a relationship exists. If a reasonable person would understand that there is not an attorney-client relationship, then no relationship exists.

References: KRS 205.712(7); Turner v. Kentucky Bar Association, 980 S.W.2d 560, 562-63 (Ky. 1998); KBA E-316 (1987); Lovell v. Winchester, 941 S.W.2d 466 (Ky. 1997); Wyoming State Bar. Riner, 765 P.2d 925 (Wyo. 1988); In re Petrie, 742 P.2d 796 (1987); Slusser v. Billet, 762 P.2d 350 (Wash. Ct. App. 1988); Ala. Op. RO-96-02; Mont. Op. 981212; http://www.montanabar.org/attorneyinfo/ethicsopinions/981212.htm); ABA/BNA Lawyers’ Manual of Professional Conduct §31:101-106; Barbara Glesner Fines, From Representing “Clients” to Serving “Recipients”: Transforming the Role of

the IV-D Child Support Enforcement Attorney, 67 Fordham L. Rev. 2155 (1999). OPINION Section 205.712 (7) of the Kentucky Revised Statutes states that a lawyer affiliated with the Cabinet for Families and Children who pursues child support enforcement matters “does not have an attorney-client relationship with the applicant who has requested services.” The issue of whether an attorney-client relationship exists between the lawyer and the party seeking the service for purposes of ethics is not controlled by that statute, however. It is a well-accepted principle in this state that the regulation of the legal profession is within the sphere of the courts, not the legislature. Turner v. Kentucky Bar Association, 980 S.W.2d 560, 562-63 (Ky. 1998). Legislative intrusion may be tolerated as a matter of comity. Turner v. Kentucky Bar Association, 980 S.W.2d 560, 563 (Ky. 1998). The existence of an attorney-client relationship for purposes of analysis of the ethics of conflicts of interest is an issue well within the sphere of the judiciary. The judiciary has not spoken on the issue of the treatment of the legislative statement in KRS 205.712(7) regarding the existence of an attorney-client relationship. Given this separation of powers history, an attorney cannot rely solely on KRS 207.712(7) as establishing that no attorney-client relationship exists in the child support enforcement setting. As was stated in KBA E-316 (1987), for purposes of ethics, rules of agency and contract determine whether an attorney-client relationship has been formed. See also ABA/BNA Lawyers’ Manual of Professional Conduct §31:101-106. In Lovell v. Winchester, 941 S.W.2d 466 (Ky. 1997), the Kentucky Supreme Court, in reviewing a writ of mandamus to disqualify an attorney on the basis of a conflict, stated: The lawyer/client relationship can arise not only by contract but also from the conduct of the parties. Courts have found that the relationship is created as a result of the client’s reasonable belief or expectation that the lawyer is undertaking the representation. Such a belief is based on the conduct of the parties. Lovell v. Winchester, 941 S.W.2d 466, 468 (Ky. 1997). See also KBA E-316 (1987); Wyoming State Bar. Riner, 765 P.2d 925 (Wyo. 1988); In re Petrie, 742 P.2d 796 (1987); Slusser v. Billet, 762 P.2d 350 (Wash. Ct. App. 1988). See generally ABA/BNA Lawyers’ Manual of Professional Conduct §31:103-04. In the context of an attorney administering child support enforcement pursuant to Title IV-D of the Social Security Act, that attorney can be found to have an attorney-client relationship with the party seeking those enforcement services if that party has a reasonable belief or expectation that an attorney-client relationship exists. The contexts of interaction of such an attorney acting pursuant to Title IV-D are varied, and the individual interactions possible between a particular lawyer and a party are yet more varied. No absolute statements as to the existence or nonexistence of an attorney-client relationship are possible. Each situation, each

interaction, must be evaluated individually.
To the extent that an attorney pursuing a child support enforcement matter wishes to ensure that no attorney-client relationship exists between that attorney and a party seeking child support enforcement services, the attorney must take steps that would make any belief in the existence of an attorney-client relationship unreasonable. To this end the attorney should fully discuss the attorney’s role in the proceeding with the party seeking enforcement services and explain the lack of an attorney-client relationship to that party. In making such a disclosure and explanation, the attorney should explain the consequences of the lack of an attorney-client relationship on such issues as confidentiality and the attorney-client privilege. The attorney would be well-advised, though it is not required by the KRPC, to provide a written explanation of the relationship to every party seeking child support enforcement services. See also Ala. Op. RO-96-02; Mont. Op. 981212; (http://www.montanabar.org/attorneyinfo/ethicsopinions/981212.htm). See generally Barbara Glesner Fines, From Representing “Clients” to Serving “Recipients”: Transforming the Role of the IV-D Child Support Enforcement Attorney, 67 Fordham L. Rev. 2155 (1999).
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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.