Can an attorney who is under contract to prosecute paternity cases for the state also accept court appointments to defend indigent putative fathers in other paternity cases?

Currency note

The Board of Professional Responsibility vacated this opinion on September 11, 2015 due to changes in the law or rules; Formal Ethics Opinion 81-F-12(a), issued shortly after this one on additional facts, found an actual conflict of interest in the specific case that prompted the inquiry. This opinion was also issued in 1981, before Tennessee's adoption of the 2003 Rules of Professional Conduct, which replaced the former Code of Professional Responsibility. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Plain-English summary

A metropolitan Juvenile Court contracted with several attorneys to prosecute disputed paternity cases under a program that became a model for other courts. The mother of an illegitimate child receiving Social Security Administration assistance, administered through the Tennessee Department of Human Services, assigned her right to recover support from the putative father to the state agency and the Juvenile Court, which then contracted with attorneys to prosecute the paternity cases and recover the funds. Those contract attorneys represented the mother, child, and government interest, leaving the indigent putative father defendant without counsel. Concerned about the fathers' rights, the Juvenile Court asked the contract attorneys to accept court appointments to defend certain cases pro bono.

The Board found no inherent conflict of interest that would categorically bar accepting such defense appointments. But it applied Canon 5, which requires an attorney to exercise independent professional judgment on behalf of a client, solely for that client's benefit and free of compromising influences and loyalties, and provides that the interests of other clients should not dilute loyalty to any one client.

The Board required that the implications of the common representation, including any potential conflicts over client confidences, be fully explained to both the putative father and the state agency in each instance, with each given the opportunity to evaluate the need for representation free of potential conflicts. The contract attorney could then represent the putative father only upon the written consent of both the father and the state agency. All doubts were to be resolved against accepting the employment, because withdrawal after a conflict manifested could cause undue hardship. To reduce undetected conflicts, each contract attorney was told to keep accurate, cross-referenced records that could be thoroughly checked in each case.

Common questions

Q: Can a lawyer who prosecutes paternity cases for the state also defend a different indigent father in a paternity case?

A: Yes, as this opinion originally held, subject to conditions. It states "there are no inherent conflict of interests which would preclude acceptance of such cases per se," but the arrangement required the safeguards described in the opinion.

Q: What did the attorney have to do before accepting the defense appointment?

A: Fully disclose the arrangement and obtain written consent from both sides. The opinion required that "the implications of the common representation... should be fully explained to the putative father and the state agency in each instance," and that "the contract attorneys may subsequently represent the putative father upon the written consent of both the putative father and the state agency."

Q: What should the attorney do if in doubt about whether a conflict exists?

A: Decline the case. The opinion states "all doubts should be resolved against the propriety of accepting employment because if the attorney accepts employment and a conflict is manifested, withdrawal of representation may likely result in undue hardship."

Background and rules framework

The opinion applied Canon 5 of the Tennessee Code of Professional Responsibility, requiring independent professional judgment exercised solely for the client's benefit and free of compromising influences and loyalties. The modern correlate is Model Rule 1.7 (conflicts of interest, including consent requirements), noted here as a navigational cross-reference rather than a rule the opinion itself applied.

Citations and references

Rules of Professional Conduct:

• Canon 5 (independent professional judgment; conflicting loyalties), Tennessee Code of Professional Responsibility
• Model Rule 1.7 (conflicts of interest), modern correlate

See also

• Tenn. Ethics Op. 81-F-12(a): DHS Prosecutor Representing Defense Clients
• Tenn. Ethics Op. 83-F-55: District Attorney and Welfare Fraud
• Tenn. Ethics Op. 90-F-123: IV-D Child Support Attorneys

Source

• Landing page: https://www.tbpr.org/ethic_opinions/81-f-12

Original opinion text

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

81-F-12 - Vacated*

*Vacated by the Board of Professional Responsibility on September 11, 2015 due to changes in the law or rules.

FORMAL ETHICS OPINION 81-F-12

An inquiry has been made concerning the propriety of an attorney representing the alleged father in the defense of a paternity suit when the attorney is by contract assigned such cases to prosecute from time to time.

The Juvenile Court of a metropolitan area has contracted with several attorneys to prosecute disputed paternity cases. This particular court has developed a paternity program which has served as a model for other courts. The mother of an illegitimate child, who collects financial assistance from the Social Security Administration administered through the Tennessee Department of Human Services, assigns her right to recover support from the putative father to the state agency and the Juvenile Court implementing the payments. The Juvenile Court, acting in this administrative function, then contracts with various attorneys to prosecute the disputed paternity cases to recover the funds. The contract attorneys represent the mother/child/government interest. The indigent putative father defendant is left without counsel.

The Juvenile Court is now concerned about the rights of the indigent putative father defendants and has requested the contract attorneys to accept appointments by the Court to defend certain cases pro bono.

There are no inherent conflict of interests which would preclude acceptance of such cases per se. However, the Ethical Considerations and Disciplinary Rules of Canon 5 of the Code of Professional Responsibility provide that an attorney shall exercise independent professional judgment on behalf of a client. The professional judgment shall be exercised solely for the benefit of the client and free of compromising influences and loyalties. The interests of other clients should not be permitted to dilute the loyalty to any client. The implications of the common representation, including potential conflicts in the area of client confidences, if any, should be fully explained to the putative father and the state agency in each instance. Each should be given the opportunity to evaluate the need of representation free of any potential conflicts. The contract attorneys may subsequently represent the putative father upon the written consent of both the putative father and the state agency. All doubts should be resolved against the propriety of accepting employment because if the attorney accepts employment and a conflict is manifested, withdrawal of representation may likely result in undue hardship. In order to reduce the possibility of undetected conflicts, each contract attorney should keep accurate records and indices with cross references readily available and they should be thoroughly checked in each instance for potential conflicts.

This 10th day of July, 1981.

ETHICS COMMITTEE:

Randall Burcham

W. H. Lassiter

George E. Morrow

APPROVED AND ADOPTED BY THE BOARD