What must a Child Support Enforcement Division attorney do when an investigation or hearing reveals tax evasion, perjury, or parental kidnapping?

Plain-English summary

CSED attorneys sometimes encounter apparent violations of law (such as tax evasion, perjury, or violation of the Parental Kidnapping Prevention Act) during investigations or administrative hearings. The committee was asked the CSED attorney's duty to report such violations. It answered that the answer is fact-driven: if the violation is found during the investigation, the obligation is not defined by the conduct rules and becomes a CSED policy issue; if found during a hearing or before a tribunal, the CSED has obligations under Rule 3.3 to correct false or incorrect representations.

The committee stressed that identifying the client is central. By statute the CSED client is the Department of Public Health and Human Services, so the confidentiality (Rule 1.6) and conflict (Rule 1.7) duties, which arise from the attorney-client relationship, do not bar the CSED attorney from disclosing violations to the appropriate governmental entity; with no attorney-client relationship with the parties, the duty to report is governed by CSED policy rather than the conduct rules. To avoid confusion, the committee suggested that obligees, obligors, and other parties be specifically told that the protections clients receive from their attorneys do not arise between the CSED attorney and those parties.

Where a violation surfaces within an adjudicative proceeding, the committee explained that Rule 3.3 (candor toward the tribunal) may apply: a lawyer shall not knowingly make a false statement of material fact, fail to disclose material facts to avoid assisting a crime or fraud, fail to disclose controlling adverse authority, or offer evidence known to be false, and must take remedial measures, with these duties continuing to the proceeding's conclusion even over Rule 1.6. The committee noted the knowledge threshold: a lawyer may refuse to offer evidence reasonably believed false, but the prohibition on false statements turns on knowing conduct.

Currency note

This opinion was issued in 1998, before the State Bar of Montana's adoption of the 2004 revisions to the Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Who is the CSED attorney's client?

A: The opinion states the client is, by statute, the Department of Public Health and Human Services, not the obligees or obligors in the matter.

Q: Must a CSED attorney report violations found during an investigation?

A: The opinion concludes that obligation is not defined by the conduct rules and is a CSED policy matter, since there is no attorney-client relationship with the parties.

Q: What if the violation surfaces in a hearing?

A: The opinion holds the CSED has Rule 3.3 obligations of candor toward the tribunal to correct false or incorrect representations.

Q: Should parties be told the CSED lawyer does not represent them?

A: Yes. The opinion suggests parties be specifically apprised that the client protections attorneys provide do not arise between them and the CSED attorney.

Background and rules framework

The opinion interprets Montana Rules of Professional Conduct 1.6 (confidentiality; Model Rule 1.6), 1.7 (conflicts; Model Rule 1.7), and 3.3 (candor toward the tribunal; Model Rule 3.3), turning on the statutory identification of the agency as the client under the organization-as-client principle (Rule 1.13).

Citations and references

Rules of Professional Conduct:

• Mont. R. Prof. Cond. 1.6 (confidentiality) / Model Rule 1.6
• Mont. R. Prof. Cond. 3.3 (candor toward the tribunal) / Model Rule 3.3
• Mont. R. Prof. Cond. 1.13 (organization as client) / Model Rule 1.13

See also

• State Bar of Montana Ethics Op. 940202: Who Is a Government Lawyer's Client
• State Bar of Montana Ethics Op. 870326: Client Perjury and Candor

Source

• Landing page: https://www.montanabar.org/For-Attorneys/State-Bar-Resources/Ethics-Opinions
• Original PDF: https://www.montanabar.org/Portals/MONTANA/Site Resources/Ethics Opinions/1.6 confidentiality/981212.pdf

Original opinion text

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

Ethics Opinion
FACTS: During the course of an investigation or administrative hearing, the attorneys for the Child Support Enforcement Division (CSED) on occasion encounter apparent or actual violations of law. The violations typically discovered include tax evasion, perjury, or violation of the Parental Kidnapping Prevention Act.

QUESTIONS PRESENTED: What is the duty under the rules of professional conduct of a CSED attorney to report apparent violations of law that are revealed during the course of an investigation or civil administrative hearing?

SHORT ANSWER: If the discovery of the violation is made during the investigation, the obligation of the CSED attorney is not defined within the Rules of Professional Conduct, but becomes a policy issue for the CSED. If the discovery is made during an administrative hearing or before another tribunal, the CSED has obligations under Rule 3.3 to correct false or incorrect representations to the tribunal.

DISCUSSION AND AUTHORITY: The answer to this inquiry is fact driven, and depends on the specific violation alleged, as well as the CSED attorney's knowledge under the circumstances. The absence of the full picture precludes us from tendering a definitive opinion on this issue, but we offer the following discussion of the controlling principles within the framework provided.

Central to the full discussion is the identification of the CSED client. In Montana, the CSED client is identified by statute to be the Department of Public Health and Human Services. Given the clear statutory definition, the CSED attorney is not bound by the rule of confidentiality (Rule 1.6) or conflict of interest (Rule 1.7) from disclosing violations of the law to the appropriate governmental entity. The obligations inherent in those rules arise in from the attorney-client relationship. As there is no attorney-client relationship, the CSED attorney's duty to report violations is not governed by the Rules of Professional Conduct, but rather by the policy of the CSED.

Given the potential for confusion that might arise on behalf of obligees and obligors, we suggest that these and other parties to CSED actions be specifically apprised that the protections afforded to clients by attorneys do not arise between the CSED attorney and those parties.

The obligation of the CSED attorney to act with the discovery of a violation of the law within an adjudicative proceeding potentially involves the obligation of candor toward the tribunal, Rule 3.3. This rule provides:

(a) A lawyer shall not knowingly:

(1) make a false statement of material fact or law to a tribunal;
(2) fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client;
(3) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or
(4) offer evidence that the lawyer knows to be false. If a lawyer has offered material evidence and comes to know of its falsity, the lawyer shall take reasonable remedial measures.

(b) The duties stated in paragraph (a) continue to the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by Rule 1.6.

(c) A lawyer may refuse to offer evidence that the lawyer reasonably believes is false.

(d) In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer which will enable the tribunal to make an informed decision, whether or not the facts are adverse.

In the event a discovery is made by the CSED attorney suggesting Rule 3.3 has been violated, the CSED attorney has an obligation to take the corrective action prescribed by the rule. While some of Rule 3.3 addresses responsibilities in the attorney/client context, not present here, the general principles of disclosure apply. Notable is the level of knowledge required for disclosure. Lawyers shall not knowingly make a false statement of material fact to a tribunal; but if a lawyer reasonably believes evidence is false, the lawyer may refuse to offer it.

THIS OPINION IS ADVISORY ONLY