Can a county child support (IV-D) director represent a custodial parent in a support case after representing the opposing party, or while representing the spouse of a new marriage against a former spouse?
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This page answers the general question as of 1986. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.
Plain-English summary
Opinion E-86-11 considered an attorney serving as the IV-D (child support agency) director for a county, a role in which federal law apparently requires the director to represent the custodial parent in post-divorce support proceedings regardless of that parent's financial status, where previously such attorneys had represented the interests of the state and county. The question was whether the attorney may accept representation of a custodial parent in a support proceeding when the attorney previously represented the other party on substantially the same issues, or when the attorney simultaneously represents the spouse of a new marriage against a former spouse and the spouse of a prior marriage, and what to do when those prior or simultaneous representations are not reasonably apparent at the outset.
On the first scenario, the committee answered no. Representation against a former client in a matter substantially related to the facts or objectives of the prior representation is prohibited professional conduct, citing its earlier Opinion E-85-8 and the Wisconsin disciplinary decisions Keyes and Conway applying the rule to domestic relations matters. On the simultaneous-representation scenario, the committee answered "yes, but": because the parties to the two proceedings are different, albeit linked by a marital relationship, and assuming no confidential information obtained from the spouse of the current marriage could be used in the representation against that person's spouse, there did not appear to be a bar to the simultaneous representation. The committee noted that a lawyer must defer to a client who believes the multiple representation is improper and withdraw from that client (SCR 20.23(3)(f)), so good practice would be to seek the informed consent of parties with standing to object before accepting the second matter, citing SCR 20.28(3) and ABA Model Rule 1.7.
On the third question, the committee advised that if the prior or simultaneous representation is not reasonably apparent before the representation begins, and if (for simultaneous representation) informed client consent cannot be appropriately requested or obtained, the attorney should seek permission of the court to withdraw and for independent counsel to be appointed.
Currency note
This opinion was issued in 1986, before Wisconsin's July 1, 2007 adoption of the revised Rules of Professional Conduct for Attorneys (the state's Ethics 2000 update), and it analyzes conduct under the former Code. The current-client conflict, former-client, and withdrawal rules are now SCR 20:1.7, 20:1.9, and 20:1.16 / Model Rules 1.7, 1.9, and 1.16. 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: Can a child support director represent a custodial parent against someone the director used to represent on the same issues?
A: The committee concluded no; representation against a former client in a substantially related matter is prohibited, citing Wisconsin disciplinary cases applying the rule to domestic relations.
Q: Can the director represent a new spouse against a former spouse while also representing a prior marriage's spouse?
A: Per the opinion, yes, but only if no confidential information from one client could be used against the other, and the committee recommended obtaining the informed consent of parties with standing to object first.
Q: What if the conflict is not apparent until after the representation starts?
A: The committee advised that, where consent cannot be requested or obtained, the attorney should seek the court's permission to withdraw and to have independent counsel appointed.
Background and rules framework
The opinion interpreted the former Code's conflict provisions (SCR 20.23, 20.28(3)) and withdrawal provisions (SCR 20.16(2)), the areas now governed by the current-client and former-client conflict rules SCR 20:1.7 and 20:1.9 / Model Rules 1.7 and 1.9 and the withdrawal rule SCR 20:1.16 / Model Rule 1.16, applied to a government family-law attorney.
Citations and references
Rules of Professional Conduct:
- Wis. SCR 20.23, 20.28(3) / Model Rules 1.7, 1.9 (conflicts; former clients)
- Wis. SCR 20.16(2) / Model Rule 1.16 (withdrawal)
- ABA Model Rule 1.7 (conflict of interest)
Cases:
- Disciplinary Proceedings Against Keyes, 112 Wis. 2d 297, 332 N.W.2d 813 (1983)
- Disciplinary Proceedings Against Conway, 100 Wis. 2d 311, 301 N.W.2d 253 (1981)
Other opinions cited:
- Wisconsin Formal Op. E-85-8
See also
- WI Ethics Op. E-89-4: Suing a Former Joint Client in Divorce
- WI Ethics Op. E-87-3: Former House Counsel Against a Former Employer
- WI Ethics Op. E-89-10: Representing Majority and Minority Investors
Source
- Landing page: https://www.wisbar.org/formembers/ethics/pages/formal-opinions.aspx
- Original PDF: https://www.wisbar.org/formembers/ethics/Ethics%20Opinions/E-86-11.pdf
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