Can a West Virginia child support advocate (and the advocate's law partners) take private domestic relations cases on the side?

Plain-English summary

The Committee took up the outside-practice limits for Child Advocates after considering similar limits on prosecuting attorneys and family law masters. A Child Advocate is a government lawyer who handles child support and related matters.

The Committee concluded that a Child Advocate should be precluded from representing private clients in any domestic relations matter in any county in the state. It identified two concerns: first, that handling a private domestic case could later create a conflict with the advocate's official duties (for example, where someone the advocate sued in a divorce proceeding later needs the advocate's help in the advocate's official capacity); and second, that private domestic work could create an incentive to handle a matter for a fee rather than in the advocate's official role (for example, collecting child support).

Drawing on its earlier opinion LEI 87-07 on family law masters, the Committee held that lawyers who are partners, associates, or otherwise affiliated with the Child Advocate are precluded from domestic relations matters in the geographic region the advocate covers, but may represent clients in other areas. Separately, any disqualification the Child Advocate has on an individual basis, such as not representing the opponent of a former client, is also imputed to those partners and associates.

Currency note

This opinion was issued in 1988, before West Virginia replaced its Code of Professional Responsibility with the Rules of Professional Conduct, effective January 1, 1989, and before later rule revisions, including the comprehensive 2015 amendments. The "Child Advocate" office it describes reflects the statutory structure in place at the time. Subsequent rule and statutory changes 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 Treat this page as historical context, not current guidance.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, office, or requirement mentioned here.

Common questions

Q: Could a West Virginia Child Advocate take a private divorce case in another county?

A: No. The opinion concluded the advocate should be "precluded from representing clients on any domestic relations matter in any county in the State," not just the advocate's home county.

Q: Were the advocate's law partners subject to the same statewide bar?

A: Not for the geographic limit. Per the opinion, partners and associates were precluded from domestic relations matters only "in the geographic region covered by the Child Advocate" and could represent clients in other areas.

Q: Did the advocate's personal conflicts pass to the firm?

A: Yes. The opinion stated that any disqualification the Child Advocate has on an individual basis, such as not representing the opponent of a former client, is also imputed to the advocate's partners, associates, or others affiliated with them.

Background and rules framework

The opinion applied conflict-of-interest and imputation principles to a specific government role, the Child Advocate, by analogy to its treatment of prosecuting attorneys and family law masters in the companion opinion LEI 87-07. It distinguished two kinds of limits: a categorical, statewide bar on the advocate personally taking private domestic relations work, and a narrower, region-based bar on the advocate's firm, supplemented by ordinary imputation of the advocate's individual client-conflicts to the firm.

Citations and references

Other opinions cited:

• WVSB LEI 87-07: Limitations on Practice of Lawyers who are Family Law Masters (the reasoning the Committee carried over to Child Advocates)

See also

• NY State Bar Op. 603: Part-time assistant city attorney conflict
• NY State Bar Op. 437: Office sharing with an assistant DA
• NY State Bar Op. 632: Disqualification of a part-time judge and firm

Source

• Landing page: https://wvodc.org/Legal-Ethics-Opinion
• Original PDF: https://storage.googleapis.com/msgsndr/Rgd68xOkcVdteTsBkf6O/media/66a7ea7e4fc34de726386043.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

LEI 88-02

LIMITATIONS OF OUTSIDE PRACTICE OF CHILD ADVOCATES

The Committee in the course of discussing limitations on practice of certain other categories of attorneys, e.g. Prosecuting Attorneys, Family Law Masters, decided it was appropriate to consider what, if any, limitations should be placed on Child Advocates.

Since handling domestic relation cases may either cause disqualification by reason of subsequent conflict, (e.g. a person against whom the Advocate brought a divorce proceeding later needs assistance from the Advocate in his or her official capacity), or provide an incentive for the Child Advocate to handle a case on a fee basis rather than in his/her capacity as a Child Advocate (e.g. a client needs assistance in collecting child support), the Committee believes Child Advocates should be precluded from representing clients on any domestic relations matter in any county in the State.

For the reasons stated in LEI 87-07, Limitations on Practice of Lawyers who are Family Law Masters, partners, associates or others affiliated with the Child Advocate are precluded from representing clients on any domestic relations matter in the geographic region covered by the Child Advocate. But they may represent clients in other areas. Any disqualification Child Advocates have on an individual basis, such as not representing the opponent of a person who once was their client, are also imputed to the Child Advocate's partners, associates, or others affiliated with them.

Arthur M. Recht, Chairman