In a state support-enforcement case, is the custodial parent the lawyer's client whose instructions the lawyer must follow?

Plain-English summary

A lawyer employed by a county district attorney's office or the Department of Justice begins support-enforcement proceedings against a former husband. During the proceedings, the former wife asks the lawyer to take actions contrary to the lawyer's own best judgment. The opinion asks whether the lawyer must do as the former wife requests.

The opinion concludes no, qualified. The statutory basis for the Support Enforcement Division is ORS 180.340, and ORS 25.080 addresses the roles of Division lawyers and county district attorney lawyers. In these proceedings, the opinion concludes the "client" is the State of Oregon, not the former wife or former husband, so the lawyer owes the former wife none of the duties normally owed to a client.

The opinion notes that ORS 25.080(4) imposes certain limitations on how government lawyers conduct such proceedings, and that those limitations must be observed. It references Oregon RPC 1.2(a) (a lawyer abides by the client's decisions about objectives and consults about means) and RPC 3.3(a)(5) (a lawyer may not knowingly engage in illegal conduct or conduct contrary to the rules).

In practice

The opinion holds that, under the Oregon rules and statutes as they stood at the time of the opinion, identifying the client controls: because the State is the client in support-enforcement proceedings, the parent who benefits from the enforcement is not a client whose instructions bind the lawyer, and the lawyer follows the statutory limits in ORS 25.080 rather than the parent's directions. Verify the current text of ORS 25.080, ORS 180.340, and the applicable rules before relying on any specific point.

Common questions

Q: In a child-support enforcement case, is the custodial parent my client?

A: No. The opinion concludes the client is the State of Oregon, not either parent, so the lawyer owes the parent no client-type duty.

Q: Do I have to follow the parent's instructions if I disagree with them?

A: No, qualified. The opinion concludes the lawyer need not act on the parent's request, because the parent is not the client, but the lawyer must observe the statutory limits in ORS 25.080(4).

Q: What rules still constrain the government lawyer here?

A: The opinion points to Oregon RPC 1.2(a) (objectives and consultation with the actual client) and RPC 3.3(a)(5) (no illegal conduct or conduct contrary to the rules), along with the support-enforcement statutes.

Background and rules framework

The opinion interprets Oregon RPC 1.2(a) (allocation of authority between lawyer and client) and RPC 3.3(a)(5) (illegal conduct), corresponding to Model Rules 1.2 and 3.3, in light of the support-enforcement statutes ORS 180.340 and ORS 25.080. The decisive question is client identity: the State, rather than a private beneficiary of the enforcement action, is the client.

Citations and references

Rules of Professional Conduct:

• Oregon RPC 1.2(a) / Model Rule 1.2 (objectives; consultation)
• Oregon RPC 3.3(a)(5) / Model Rule 3.3 (illegal conduct)

Statutes:

• ORS 180.340 (Support Enforcement Division)
• ORS 25.080 (roles of Division and district attorney lawyers; limitations)

Cases:

• In re Harrington, 301 Or 18, 718 P2d 725 (1986)

See also

• OSB Ethics Op. 2005-14: A Deputy District Attorney Representing Private Parties
• OSB Ethics Op. 2005-46: Who Is the Client Under a Group Legal-Assistance Plan

Source

• Landing page: https://www.osbar.org/ethics/toc.html
• Original PDF: https://www.osbar.org/_docs/ethics/2005-57.pdf