Must a Tennessee prosecutor notify a delinquent child-support obligor's attorney of record before filing a petition for contempt and attachment against the obligor?

Plain-English summary

A state prosecutor asked whether filing petitions for contempt and attachment against individuals previously represented by counsel, without first notifying their attorneys of record, was ethically proper. The petitions arose from complaints that obligor parents had not paid court-ordered child support, and were filed under T.C.A. Section 36-5-101(b), which authorizes the Clerk to issue a summons or, at the court's discretion, a writ of attachment, with the petitions presented to the Clerk and then to the court without a further appearance by the parties at that stage.

The opinion applied DR 7-106(C)(5), which barred a lawyer appearing before a tribunal from failing to comply with known local customs of courtesy or practice of the bar without giving opposing counsel timely notice of an intent not to comply. The relevant local custom was Standard No. 1 of the Standards of Professional Conduct: a lawyer should avoid taking action adverse to a litigant known to be represented without notice to adversary counsel sufficient to permit a response. The opinion cited Wright v. Roberts, in which the Tennessee Supreme Court suspended a lawyer for taking a default judgment without notice to opposing counsel, and Patterson v. Rockwell International, which described what constitutes an appearance under Tennessee practice. Reasoning from Patterson, the opinion concluded that filing a contempt and attachment petition under T.C.A. Section 36-5-101(b) constitutes an appearance for purposes of DR 7-106.

On that basis, the opinion held that the prosecutor is ethically obligated to certify that a copy of the petition was previously mailed to the attorney of record. If the attorney-client relationship between the obligor and the attorney of record had ended, the attorney's ethical obligations were satisfied by filing a motion to be relieved and stricken as attorney of record. And where the prosecutor had probable cause to believe that notifying the prior attorney of record would likely cause the defaulting obligor to flee the jurisdiction, the prosecutor could apply to the court for permission to file the petitions without notice.

Currency note

This opinion was issued in 1988, 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.

Common questions

Q: Did a prosecutor have to notify a child support obligor's attorney before filing a contempt and attachment petition?

A: Yes. The opinion held that filing such a petition is an appearance under DR 7-106(C)(5), so the prosecutor had to certify that a copy of the petition was previously mailed to the obligor's attorney of record.

Q: What if the attorney-client relationship with the prior attorney had already ended?

A: The opinion found that the prior attorney's ethical obligations were satisfied by filing a motion to be relieved and stricken as attorney of record, which would put the prosecutor on notice that no current attorney of record needed the petition mailed to them.

Q: Was there any exception to the notice requirement?

A: Yes. The opinion allowed a prosecutor with probable cause to believe that notice would likely cause the obligor to flee the jurisdiction to apply to the court for permission to file the petitions without notice to the attorney of record.

Background and rules framework

The opinion applied former DR 7-106(C)(5) (a lawyer's trial-conduct duty to comply with known local customs of courtesy, or give opposing counsel notice of an intent not to comply) together with Standard No. 1 of the Standards of Professional Conduct (avoiding action adverse to a represented litigant without sufficient notice to opposing counsel). Model Rule 3.4 / Tennessee RPC 3.4 (fairness to opposing party and counsel) is the closest modern correlate, though the Model Rules did not carry forward DR 7-106(C)(5)'s specific local-custom-notice clause in the same form.

Citations and references

Rules of Professional Conduct (former Code):

• DR 7-106(C)(5) (duty to comply with known local customs of courtesy, or notify opposing counsel of an intent not to comply). Closest modern correlate: Model Rule 3.4 / Tennessee RPC 3.4
• Standard No. 1, Standards of Professional Conduct (avoiding action adverse to a known-represented litigant without sufficient notice to opposing counsel)

Statutes:

• T.C.A. Section 36-5-101(b) (contempt and attachment petitions for delinquent child support)

Cases:

• Wright v. Roberts, 573 S.W.2d 468 (Tenn. 1978), six-month suspension for taking a default judgment without notice to opposing counsel
• Patterson v. Rockwell International, 665 S.W.2d 96 (Tenn. 1984), describing what constitutes an appearance under Tennessee practice

See also

• NY State Bar Op. 407: Failure to Respond to Opposing Counsel
• WI Ethics Op. E-84-2: Request for Extension to Answer

Source

• Landing page: https://www.tbpr.org/ethic_opinions/88-F-116

Original opinion text

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

88-F-116 - Prosecutor filing petitions for contempt and attachment without notifying prior counsel

BOARD OF PROFESSIONAL RESPONSIBILITY OF THE SUPREME COURT OF TENNESSEE

FORMAL ETHICS OPINION 88-F-116

A state prosecutor inquires concerning the ethical propriety of filing petitions for contempt and attachment against individuals previously represented by counsel without first notifying the individuals' attorneys of record of the intent to do so.

The issue addressed in this inquiry arises from the practice of the state prosecutor filing petitions for contempt and attachment against individuals as a result of complaints by parents, or the Department of Human Services when the obligee parent and children are recipients of AFDC, who have not received the child support payments as ordered by the court. The petitions are filed pursuant to T.C.A. 36-5-101(b) which authorizes the Clerk of the Court to issue a summons, or in the discretion of the Court attachments of the obligor parents and setting a bond and date for appearance before the Court. The petitions are filed with the Clerk with no further appearance before the Court at that time. The Clerk presents the petitions to the Court for consideration of whether writs of attachment should issue pursuant to T.C.A. 36-5-101(b).

The question to be determined is whether the state prosecutor is in violation of Disciplinary Rule 7-106(C)(5) of the Code of Professional Responsibility which states:

DR 7-106 Trial Conduct.

(C) In appearing in his professional capacity before a tribunal, a lawyer shall not:

(5) Fail to comply with known local customs of courtesy or practice of the bar or a particular tribunal without giving to opposing counsel timely notice of his intent not to comply.

The local custom or practice of the bar in question is Standard No. 1 of the Standards of Professional Conduct, to-wit:

A lawyer should avoid taking action adverse to the interest of a litigant known to be represented without notice of adversary counsel sufficient to permit response.

The Tennessee Supreme Court in the case of Wright v. Roberts, 573 S.W.2d 468 (Tenn. 1978) suspended Wright from the practice of law for six months for taking a default judgment and final divorce decree without notice to opposing counsel and the court that the adverse party had previously filed a divorce action in another division. Wright also advised his client to violate a restraining order.

In the case of Patterson v. Rockwell International, 665 S.W.2d 96 (Tenn. 1984) the Tennessee Supreme Court in a discussion concerning "appearance" stated:

The Tennessee Rules of Civil Procedure do not define an appearance; we, therefore, turn to court decisions for guidance. It has been said that the filing of any pleading, making or resisting of any motion, filing of exceptions to a Master's report, taking of depositions to be read in a cause, making of any agreement with plaintiff or his attorney relative to any proceeding in a case, or any other act in the cause, between the filing of the complaint and rendention of the final decree, whereby pendency of the suit is recognized, expressly or by implication will, if these be record evidence of the fact, constitute a general and unlimited appearance, unless limited by express declaration or by necessary implication....

It is recognized that an appearance may be expressly made by formal written or oral declaration, or record entry, to the effect that the defendant appears, or it may be implied from some act done with the intention of appearing and submitting to the court's jurisdiction.

Filing of petitions for contempt and attachment by the state prosecutors against delinquent child support obligors pursuant to TCA 36-5-101(b) constitutes an appearance as contemplated in DR 7-106.

The state prosecutor is ethically obligated to certify that a copy of petitions for contempt and attachment filed pursuant to TCA 36-5-101(b) have been previously mailed to the attorney-of-record in the cause.

In the event the attorney-client relationship between the obligor and the attorney-of-record has been terminated then the ethical obligations of the attorney-of-record are fulfilled by the filing of a motion to be relieved and stricken as attorney-of-record.

The prosecutor having probable cause to believe that notice to the prior attorney-of-record will likely result in the defaulting obligor fleeing the jurisdiction may apply to the Court having jurisdiction of the matter for permission to file petitions for contempt and attachment without notice to the attorney-of-record.

This 15th day of December, 1988.

ETHICS COMMITTEE:

Michael E. Callaway

Kitty G. Grubb

Charles T. Herndon, III

APPROVED AND ADOPTED BY THE BOARD