TNBPR August 12, 1981

If defending a putative father in a paternity case requires attacking the legal basis of the state's paternity program, can the same attorney who prosecutes paternity cases for the state under that program still take the defense appointment?

Short answer: No. On the additional facts supplied after Opinion 81-F-12, the Board concluded that because defending the putative father would require attacking the statutory and constitutional bases of the entire state paternity program and the Department of Human Services' handling of welfare cases and paternity claim assignments, forcing the attorney into an adversarial position against the same welfare officials he serves as their attorney, the additional facts revealed a real conflict of interest between representing the state agency and representing the putative fathers.

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This page answers the general question as of 1981. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.

Disclaimer: Advisory only. Not binding precedent.

About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked on this page) is the authoritative source for any reliance.

Currency note

This opinion was issued in 1981, before Tennessee's adoption of the 2003 Rules of Professional Conduct, which replaced the former Code of Professional Responsibility. The Board vacated the related Formal Ethics Opinion 81-F-12, which this opinion supplements, on September 11, 2015 due to changes in the law or rules. Subsequent rule amendments 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 Treat this page as historical context, not current guidance.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.

Plain-English summary

After the Board issued Opinion 81-F-12, which found no inherent conflict of interest barring a paternity-prosecution contract attorney from also accepting appointment to defend indigent putative fathers, subject to disclosure and dual consent, the inquiring attorney supplied the Board with additional facts and requested further consideration.

The new information was that representing putative fathers in disputed paternity cases under the Social Security Administration program administered through the Tennessee Department of Human Services would require the defense attorney to attack the statutory and constitutional bases of the entire paternity program, as well as the manner in which the Department of Human Services handled welfare cases and assigned paternity claims. That defense would necessarily put the attorney in an adversarial position against officials within the Welfare Department with whom he had to deal, as their attorney, in his separate representation of the State of Tennessee.

The Board concluded that these additional facts clearly revealed a conflict of interest between representing the state agency and representing the putative fathers. As stated in Opinion 81-F-12, Canon 5 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. The additional facts revealed the presence of exactly those compromising influences and loyalties.

Common questions

Q: Does supplementing 81-F-12's general approval, this opinion found an actual conflict in this specific case?

A: Yes. The Board states "these additional facts clearly reveal a conflict of interest between representation of the state agency and representation of the putative fathers."

Q: What made this situation different from the general rule in 81-F-12?

A: The nature of the defense itself. The opinion explains the defense "would require that the attorney representing the putative father attack the statutory and constitutional bases of the entire paternity program, as well as the manner in which the Department of Human Services handles welfare cases and assignment of paternity claims," requiring "his taking an adversarial position against officials within the Welfare Department with whom he must deal, as their attorney."

Q: What rule did the Board apply to reach this conclusion?

A: The same Canon 5 standard from 81-F-12. The opinion states "Canon 5 requires that an attorney shall exercise independent professional judgment on behalf of a client, and such judgment shall be exercised solely for the benefit of the client and free of compromising influences and loyalties," and found "the presence of compromising influences and loyalties which create a conflict of interest."

Background and rules framework

The opinion applied Canon 5 of the Tennessee Code of Professional Responsibility, building directly on the general framework set out in Formal Ethics Opinion 81-F-12. The modern correlate is Model Rule 1.7 (conflicts of interest), 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

Other opinions cited:

Tennessee Formal Ethics Opinion 81-F-12: found no inherent conflict per se in a paternity-prosecution attorney also defending indigent fathers, subject to disclosure and consent

Source

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

Original opinion text

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

81-F-12(a) - DHS Prosecutor Representing Defense Clients

BOARD OF PROFESSIONAL RESPONSIBILITY OF THE SUPREME COURT OF TENNESSEE

FORMAL ETHICS OPINION 81-F-12(a)

Subsequent to the issuance of Opinion 81-F-12, the attorney requesting the opinion has notified the Board of additional facts relative to the case, and requested further consideration of the issues.

The additional information furnished by the inquiring attorney is that the representation of putative fathers in connection with disputed paternity cases under a program of the Social Security Administration, administered through the Tennessee Department of Human Services, would require that the attorney representing the putative father attack the statutory and constitutional bases of the entire paternity program, as well as the manner in which the Department of Human Services handles welfare cases and assignment of paternity claims. This would necessitate his taking an adversarial position against officials within the Welfare Department with whom he must deal, as their attorney, in his representation of the State of Tennessee.

These additional facts clearly reveal a conflict of interest between representation of the state agency and representation of the putative fathers.

As stated in Opinion 81-F-12, Canon 5 requires that an attorney shall exercise independent professional judgment on behalf of a client, and such judgment shall be exercised solely for the benefit of the client and free of compromising influences and loyalties.

The additional facts cited by the inquiring attorney reveal the presence of compromising influences and loyalties which create a conflict of interest.

This 12th day of August, 1981.

ETHICS COMMITTEE:

Randall Burcham

W. H. Lassiter

George E. Morrow

APPROVED AND ADOPTED BY THE BOARD

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