Does a district attorney who provides Title IV-D child support enforcement services form an attorney-client relationship with the public-assistance recipient, and can the DA later prosecute that recipient for welfare fraud?

Currency note

This opinion was issued in 1983, before Tennessee's adoption of the 2003 Rules of Professional Conduct, which replaced the former Code of Professional Responsibility. 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 Treat this page as historical context, not current guidance.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.

Plain-English summary

The Board was asked whether an attorney-client relationship exists between district attorneys who provide child support enforcement services under Title IV-D of the federal Social Security Act and the recipient of a public-assistance grant, and whether a district attorney may prosecute such a recipient for welfare fraud after having provided those enforcement services. The Tennessee Department of Human Services had contracted with district attorneys to locate absent parents, establish paternity, pursue criminal non-support actions in juvenile court, file reciprocal-enforcement petitions, and enforce support orders; recipients of AFDC assistance assign their right to collect support to the Department under T.C.A. 14-8-124.

The opinion concluded that there is no attorney-client relationship between district attorneys who provide child support enforcement services and the recipient of a public-assistance grant. It reasoned that district attorneys are advocates of the state and never, at any time, have an attorney-client relationship with any individual; prosecutors are not mere civil litigants but represent the state, and they cannot assume the standard governing an attorney appearing for an individual client as the guide for their conduct.

Because no such relationship exists, the opinion found no impropriety in a district attorney prosecuting a recipient for welfare fraud after having provided child support enforcement services, comparing it to prosecuting the victim of a crime for perjury after having prosecuted the original case.

Common questions

Q: Does a district attorney providing child support enforcement services represent the recipient?

A: No. The opinion concluded "[t]here is no attorney-client relationship between District Attorneys who provide child support enforcement services and the recipient of a public assistance grant," because district attorneys "are advocates of the state and never, at any time, have an attorney-client relationship with any individual."

Q: Can the district attorney later prosecute that recipient for welfare fraud?

A: Yes. The opinion found "no impropriety in the District Attorney prosecuting a recipient for welfare fraud after having provided child support enforcement services," likening it to prosecuting a crime victim for perjury after prosecuting the original case.

Q: Why doesn't the usual conflict-of-interest analysis apply to the prosecutor here?

A: Because, in the opinion's words, "[p]rosecutors are not mere civil litigants but represent the state and they cannot assume the standard of an attorney appearing on behalf of an individual client as a guide for their conduct."

Background and rules framework

The opinion addressed the prosecutor's role under Title IV-D of the federal Social Security Act (42 U.S.C. 601 et seq.) and the assignment of support rights under T.C.A. 14-8-124. It did not cite a numbered Disciplinary Rule; its analysis turned on the absence of an attorney-client relationship rather than on a conflict rule. The modern correlate is Model Rule 1.7 (conflicts of interest: current clients), noted here as a navigational cross-reference rather than a rule the opinion itself applied. The later Formal Ethics Opinion 90-F-123 revisited the attorney-client status of Title IV-D enforcement attorneys.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.7 (conflicts of interest: current clients), modern correlate

Statutes:

• Title IV-D, Social Security Act, 42 U.S.C. 601 et seq. (state child support enforcement program)
• T.C.A. 14-8-124 (assignment of support rights by AFDC recipients)

See also

• Tennessee Op. 81-F-12: Contract Attorney Defending Paternity Cases (Vacated)
• Tennessee Op. 81-F-12(a): DHS Prosecutor Representing Defense Clients
• Tennessee Op. 90-F-123: IV-D Child Support Attorneys
• Tennessee Op. 85-F-88: Public Official Suing the State
• Tennessee Op. 84-F-60: County Attorney Defending Criminal Cases Against Sheriff's-Office Witnesses

Source

• Landing page: https://www.tbpr.org/ethic_opinions/83-f-55

Original opinion text

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

83-F-55 - District Attorney

BOARD OF PROFESSIONAL RESPONSIBILITY OF THE SUPREME COURT OF TENNESSEE

FORMAL ETHICS OPINION 83-F-55

Inquiry is made concerning whether or not an attorney-client relationship exists between district attorneys, who provide child support enforcement services, and the recipient of a public assistance grant; and, the propriety of the district attorney prosecuting a recipient for welfare fraud after having provided child support enforcement services.

Title IV-D of the Federal Social Security Act, 42 U.S.C. 601 et seq. requires each state to establish and maintain a child support enforcement program. The Tennessee Department of Human Services (D.H.S.) is the state agency responsible for adopting and implementing a plan to conform to the requirements of the Social Security Act. D.H.S. has contracted with the District Attorney to provide certain services including location of absent parents, filing petitions to establish paternity, proceeding in juvenile court under the criminal non-support statutes, filing interstate or inter-county reciprocal enforcement of support petitions and enforcing support orders in existing divorce cases.

In addition to the above, D.H.S. also contracts with the District Attorney to provide support collection services for individuals who are not public assistance recipients. These individuals assign to D.H.S. the right to collect and disburse such support payments.

The recipient of Title IV-D public financial AFDC assistance assigns the right to receive and collect all support payments to D.H.S. pursuant to T.C.A. 14-8-124. The assignment is for such terms as public assistance is paid to the recipient and for the amount up to the total public assistance paid to the recipient. Actions to collect such support may be brought either in the name of D.H.S. or in the name of the recipient to recover support payments.

There are instances where support payments are erroneously made to and retained by the recipient which should belong to D.H.S. There are also instances where the recipient has accepted payments from the responsible parent and unlawfully receives public assistance. Inquiry is, therefore, made as to the propriety of the District Attorneys bringing actions against the recipient to recover the funds and/or prosecuting the recipient for welfare fraud.

There is no attorney-client relationship between District Attorneys who provide child support enforcement services and the recipient of a public assistance grant. The District Attorneys are advocates of the state and never, at any time, have an attorney-client relationship with any individual. Prosecutors are not mere civil litigants but represent the state and they cannot assume the standard of an attorney appearing on behalf of an individual client as a guide for their conduct.

There is no impropriety in the District Attorney prosecuting a recipient for welfare fraud after having provided child support enforcement services, just as there is no impropriety in prosecuting the victim of a crime for perjury after having prosecuted the original case.

This 24th day of August , 1983.

ETHICS COMMITTEE:

Edwin C. Townsend

W. J. Flippin

Henry H. Hancock

APPROVED AND ADOPTED BY THE BOARD