I'm a lawyer for a state child-support agency. Can I represent the state to recover overpaid support from a custodial parent I already represent, and can my office take the opposing parent's case after a custody switch?

Plain-English summary

The inquiring attorney worked for a division of a state agency charged by federal and state statute with establishing and enforcing child-support orders. Under the governing statutes, agency attorneys represented the state when custodial parents received public assistance, and also represented custodial parents who were not on public assistance in enforcement matters. The attorney presented two scenarios. In the first, a division attorney represented a non-welfare custodial parent in an enforcement action; support payments belonging to one client were erroneously posted to a different client, and the agency asked the attorney to represent the state, at an administrative hearing and in Superior Court, to recoup the overpaid funds from the parent who received them. In the second, a division attorney represented a mother against a father in an enforcement action, the court then changed custody to the father, and the father asked for representation by an attorney in the division.

On the first scenario, the panel concluded there was a conflict of interest under Rule 1.7(a): the state's interest in recouping the funds was directly adverse to the attorney's client, the custodial parent who received them. Although a client may sometimes consent to representation despite a conflict, the panel reasoned that where a disinterested lawyer would advise against consent (as it concluded one would here) the lawyer cannot properly seek consent. The panel concluded the attorney could not represent the state in the recoupment proceedings, and that withdrawing from the representation of the custodial parent would not cure the conflict. As to continuing the original enforcement representation, the attorney had to consider Rule 1.7(b) and could continue only if he reasonably believed it would not be materially limited by his obligations to the state and each client consented after consultation. The attorney could not represent the custodial parent against the state in the recoupment proceedings, because their interests were directly adverse to the state, the attorney's other client.

On the second scenario, the panel concluded the mother's attorney had a Rule 1.7(a) conflict that barred him from representing the father, whose interests were directly adverse to the mother's. Because the lawyers employed in the division constituted a "firm" under the Rules, the panel concluded that under Rule 1.10(a) the conflict was imputed to the other division lawyers. The panel further concluded that the conflict was such that it would be improper to seek the consent of both the mother and the father, so the division had to decline to represent the father. The panel suggested the agency adopt an internal procedure to guard against future conflicts.

Currency note

This opinion was issued in March 1999, after the Rhode Island Supreme Court adopted the Model Rules of Professional Conduct effective November 15, 1988, and it applies Rules 1.7 and 1.10 as originally adopted. The Rhode Island Supreme Court later revised the Rules of Professional Conduct in 2007 as part of the nationwide Ethics 2000 process. 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 mentioned here.

Common questions

Q: Can a government child-support attorney represent the state against a custodial parent the attorney already represents?

A: No. The opinion concluded that Rule 1.7(a) prohibited it, because the state's interest in recouping the funds was directly adverse to the attorney's own client, and a disinterested lawyer would advise the client against consenting.

Q: Can the attorney fix the conflict by withdrawing from the custodial parent's case first?

A: No. The opinion concluded that withdrawing from the representation of the custodial parent in order to represent the state did not cure the conflict of interest.

Q: Can the attorney keep handling the parent's original enforcement action?

A: Only under Rule 1.7(b). The opinion allowed continued representation in the original child-support enforcement action if the attorney reasonably believed it would not be materially limited by his responsibilities to the state and each client consented after consultation.

Q: If one division lawyer is conflicted out of the opposing parent's case, can another division lawyer take it?

A: No. The opinion concluded that division lawyers constitute a firm, so under Rule 1.10(a) the conflict was imputed to the other division lawyers, and the division had to decline to represent the father.

Background and rules framework

The opinion applied Rhode Island Rules of Professional Conduct 1.7 (Model Rule 1.7) and 1.10 (Model Rule 1.10) as originally adopted. Rule 1.7(a) bars a representation directly adverse to another client unless the lawyer reasonably believes the relationship with the other client will not be adversely affected and each client consents after consultation; the opinion applied the Comment's principle that where a disinterested lawyer would advise against consent, the lawyer may not seek it. Rule 1.7(b) governs material-limitation conflicts. Rule 1.10(a) provides that while lawyers are associated in a firm, none may knowingly represent a client when any one practicing alone would be barred by Rules 1.7, 1.8(c), 1.9, or 2.2, and Rule 1.10(d) allows waiver under the conditions in Rule 1.7. The opinion concluded that lawyers in the agency division constituted a firm for these purposes.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.7 / RI RPC 1.7(a), 1.7(b) (conflict of interest: directly adverse and material-limitation)
• Model Rule 1.10 / RI RPC 1.10(a) (imputed disqualification within a firm)

See also

• RI EAP Op. 99-09: Of-counsel affiliation is not a firm for imputation
• RI EAP Op. 99-13: Agency lawyer adverse to a city
• RI EAP Op. 99-12: Former-client conflict imputed to the new firm

Source

• Landing page: https://www.courts.ri.gov/attorney-resources/Pages/Ethics-Advisory-Panel-default.aspx
• Original PDF: https://www.courts.ri.gov/Opinions/EAP%2099-07.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

Final

Rhode Island Supreme Court
Ethics Advisory Panel
Opinion No. 99-07 - Request No. 768
Issued March 10, 1999

Facts:

The inquiring attorney is an attorney for a division of a state agency which by federal and
state statute is charged with the tasks of establishing and enforcing child support orders for the
benefit of the state and custodial parents. Under the pertinent statutes, attorneys for the division
represent the state pursuant to a statutory assignment of rights in cases in which the custodial
parents are receiving public assistance. The inquiring attorney states that the pertinent statutes
also require agency attorneys to represent custodial parents who are not receiving public
assistance in the above-mentioned matters. The inquiring attorney presents two situations for the
Panel's consideration.

In the first scenario, an attorney in the division represents more than one custodial parent
against the same absent parent for the enforcement of child support orders. Child support
payments that belong to one client were erroneously posted to and received by the other client.
Pursuant to published state policy which provides for notice and a hearing, the agency is
attempting to recoup the erroneously transmitted funds from the custodial parent who received
them. The agency has asked the attorney to represent the state's interest at the administrative
hearing, and to commence an action in Superior Court on behalf of the state to recoup the funds.

In the second situation, an attorney in the division represents the mother, who is a
non-welfare custodial parent, against the father in an action to enforce a child support order.
Meanwhile, the court has ordered a change in custody to the father. The father now requests
representation by an attorney in the division.

Issues Presented:

A. The inquiring attorney asks whether in the first scenario the agency attorney who
represents a non-welfare custodial parent in a child support enforcement matter may represent the
state against that client in an administrative or a court proceeding to recoup child support funds
erroneously transmitted to the client. He/she also asks whether the attorney should withdraw
from representing the custodial parent to represent the state.

B. The inquiring attorney asks whether in the second situation the attorneys for the
division may represent the father as custodial parent in a proceeding against the mother whom
an attorney in the division already represents in a child support enforcement action against the
father.

Final Op. 99-07
Page 2

Opinion:

A. There is a conflict of interest pursuant to Rule 1.7(a) which prohibits the attorney
from representing the state's interest in proceedings to recoup funds from his/her client. The
attorney may not represent the state in the proceedings even if he/she withdraws from the
representation of the client. The attorney may continue to represent the client in the child
support enforcement action if the attorney reasonably believes that the representation will not be
materially limited by the attorney's responsibilities to the state, and if he/she obtains the client's
consent after consultation. The attorney may not represent the custodial parent in the
recoupment proceedings.

B. The attorney who represents the mother has a conflict of interest pursuant to Rule
1.7(a) which would prohibit him/her from representing the father. Under Rule 1.10(a), the
conflict of interest is imputed to other attorneys in the division and therefore attorneys in the
division must decline the representation of the father.

Reasoning:
Rule 1.7 states:

(a) A lawyer shall not represent a client if the representation of
that client will be directly adverse to another client, unless:

(1) the lawyer reasonably believes the representation will
not adversely affect the relationship with the other
client; and
(2) each client consents after consultation.

(b) A lawyer shall not represent a client if the representation of
that client may be materially limited by the lawyer's
responsibilities to another client or to a third person, or by the
lawyer's own interests, unless:

(1) the lawyer reasonably believes the representation
will not be adversely affected; and

(2) the client consents after consultation. When
representation of multiple clients in a single
matter is undertaken, the consultation shall

Final Op. 99-07
Page 3

include explanation of the implications of the
common representation and the advantages and
risks involved.

In the first scenario, the interests of the state are directly adverse to the interests of the
attorney's client, the custodial parent in possession of erroneously transmitted funds. Although
under paragraph (a)(1) a client may consent to representation notwithstanding such a conflict,
when a disinterested lawyer would conclude that the client should not agree to the representation,
the lawyer involved cannot properly request the client's consent or provide representation on the
basis of the client's consent. See Comments to Rule 1.7. In the opinion of the Panel, a
disinterested lawyer would likely advise against consent in the situation presented. Therefore,
there is an impermissible conflict of interest that prohibits the attorney from representing the
state in the recoupment proceedings against his/her client. Withdrawing from the representation
of the custodial parent in order to undertake the representation of the state does not cure the
conflict of interest.

The Panel believes that with respect to the continued representation of the custodial
parent in the original child support enforcement action, the attorney must also consider Rule
1.7(b). Specifically, if the attorney represents the state in other matters, such as assigned child
support matters where the custodial parents are receiving public assistance, the attorney is in the
unenviable position of representing two clients who have adverse interests. Under Rule 1.7(b)
the attorney has a further obligation to decide whether the continued representation of the
custodial parent in the child support enforcement action will be materially limited by his/her
representation of or obligations to the state. The attorney may continue the representation of the
custodial parent only if he/she reasonably believes that the representation will not be materially
limited and if each client consents after consultation. As to whether the attorney may represent
the custodial parent in his/her defense against the state in any recoupment proceedings, the Panel
is of the opinion that pursuant to Rule 1.7(a) he/she may not. The interests of the custodial
parent are directly adverse to the interests of the attorney's other client, the state, in the
recoupment proceedings.

No facts were submitted which indicate that the interests of the two custodial parents are
adverse. The Panel cautions, however, that before undertaking and during the representation of
more than one custodial parent against the same absent parent, attorneys in the agency must
consider whether there exists a conflict of interest pursuant to Rule 1.7.

In the second scenario, the interests of the mother are directly adverse to those of the
father. Pursuant to Rule 1.7(a), the mother's attorney has a conflict of interest which prohibits
him/her from representing the father. Lawyers employed in the division of the agency which is
charged with the tasks of establishing and enforcing child support orders constitute a firm within

Final Op. 99-07
Page 4

the meaning of the Rules of Professional Conduct. The prohibitions set forth in Rule 1.10(a)
therefore apply.

In pertinent part, Rule 1.10 states:

(a) While lawyers are associated in a firm, none of them shall
knowingly represent a client when any one of them practicing
alone would be prohibited from doing so by Rules 1.7, 1.8(c), 1.9
or 2.2.

(d) A disqualification prescribed by this rule may be waived by the
affected client under the conditions stated in Rule 1.7.

It is the opinion of the Panel that the conflict of interest of the attorney who represents the
mother is imputed to other lawyers in the division. The Panel further believes that the conflict
presented in this second scenario is such that it would be improper for the attorneys to request the
consent of the mother and of the father. Accordingly, the attorneys in the division must decline
the representation of the father in the second scenario. The Panel suggests that the agency should
adopt an internal procedure to safeguard against future conflicts of interest.

In summary, the Panel concludes that in the first scenario (a) the agency attorney for the
non-welfare custodial parent has a conflict of interest and is prohibited from representing the
state in the recoupment proceedings; (b) the agency attorney cannot cure the conflict by
withdrawing from the representation of his/her client in order to represent the state; (c) the
agency attorney may continue to represent the client in the original child support enforcement
proceedings only if he/she reasonably believes that the representation will not be materially
limited by his/her responsibilities to the state, and if the clients consent; and (d) the attorney may
not represent his client against the state in the recoupment proceedings. The Panel concludes that
in the second scenario, the attorneys in the division must decline the representation of the father.
The Panel's guidance is restricted to interpretations of the Rules of Professional Conduct
and does not extend to issues under the State Ethics Code or any other rules, regulations or laws
that may have bearing on the issues raised by this inquiry.