Opinion 934

This committee has been asked to provide an opinion on conflicts of interest that appear in situations that may occur in support enforcement and paternity actions commenced by a county prosecutor. The committee has received comment from prosecutors and from public defender associations on the issues that exist. The committee is impressed by the apparently large number of cases routinely handled by prosecutors where one or more of the parties in the proceeding may be relying on the prosecutor's expertise in determining whether to accept negotiated terms of settlement. Likewise, the committee recognizes the significant public interest at stake in the proceedings to establish support obligations and secure payment in a practical and expedient manner.

It is the committee's feeling that issuance of strict opinions on the existence or lack of existence of conflicts in the hypothetical fact situations presented may lead to misapplication of the committee's opinion. The better response, in the opinion of the committee, is to set forth the applicable rules; the hypotheticals presented; and a description of the analysis that the committee believes should be made by the prosecutor involved in consideration of the potential conflicts.

The hypotheticals submitted are as follows:

Tracy is an unwed mother of two. She is currently receiving Public Assistance for her children. As a condition of receiving Public Assistance, she has assigned all her child support rights to the State of Washington (D.S.H.S.). She named Bob as the putative father of her children and D.S.H.S has sent the case to the prosecutor's office under a cooperative agreement, asking it to establish paternity and obtain court ordered child support.

Bob appears through his attorney. He admits paternity but denies owing any back support for Public Assistance already paid to Tracy for the children because he claims he, not Tracy, had physical custody of the children during most of the time Tracy received Public Assistance. He also claims he paid support money directly to Tracy while she was on Public Assistance. Tracy denies both of these allegations.

Tracy, in a panic, decides to meet with Bob's attorney in an attempt to "settle out of court." The Deputy Prosecuting Attorney advises her not to meet with Bob's attorney, but to hire her own attorney. She ignores the advice and confesses all to Bob's attorney. Bob's attorney then uses her confessions in responsive pleadings which are designed to convince the court that his client does not owe a duty of reimbursement for Public Assistance paid.

Shawna is an unwed mother of one. She received Public Assistance for her child from 1969 through 1984, and has been working at K-Mart since then, earning $4.25 per hour. The State filed a paternity suit in 1983 against Rick, whom she named as the putative father. Rick hired a lawyer and denied paternity. The case is set for trial in 1986. Shawna has signed up through D.S.H.S. for what the State calls "451 services." These services authorize D.S.H.S. to collect support on Shawna's behalf. The D.S.H.S agreement does not authorize the Deputy Prosecuting Attorney to act as Shawna's attorney. The Deputy Prosecuting Attorney's authority derives from RCW 74.20.040 (2) as amended, which reads: "The [D.S.H.S.] secretary may accept applications for support services on behalf of persons who are not recipients of Public Assistance and may take action in appropriate cases to establish or enforce support obligations against the parent or other persons owing a duty to pay moneys."

The issues at trial will be paternity, reimbursement for past support owed to the State and to Shawna, current support owed to Shawna, custody and visitation. The State is seeking arrears of over $10,000.00. Shawna wants the maximum current support.

Doris is a divorced mother of three. Her divorce decree gives her custody of the children and orders her ex-husband to pay $450.00 per month in child support. Doris is not on Public Assistance. Her ex-husband has not paid support. Both live in the county. The Office of Support Enforcement sends the case to the prosecutor for filing of criminal charges under RCW 26.20.030. Doris has signed an agreement with Support Enforcement which authorizes D.S.H.S. to collect support on Doris's behalf. There is no agreement authorizing the Prosecutor to act as Doris's attorney. The Prosecutor sends a letter to Doris's ex-husband informing that he must begin paying current support and a lump sum of accrued support arrears or else criminal non-support charges will be filed against him.

Applicable rules of professional conduct are as follows:

Rule 4.3 Dealing with Unrepresented Person: In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer's role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding.

Rule 1.7 Conflict of Interests: (a) A lawyer shall not represent a client if the representation of that client will be directly adverse to another client, unless: (1) A lawyer presumably believes the representation will not adversely affect the relationship with the other client; and (2) Each client consents in writing after consultation and a full disclosure of the material facts (following authorization from the other client to make such a disclosure). (b) A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer's responsibilities to another client or to a third person or by the lawyer's own interests, unless: (1) The lawyer reasonably believes the representation will not be adversely affected; (2) The client consents in writing after consultation and a full disclosure of the material facts (following authorization from the other client to make such a disclosure). When representation of multiple clients in a single matter is undertaken, the consultation shall include explanation of the implications of the common representation and the advantages and risks involved.

The Rules of Professional Conduct do not define "Client." The definition in Black's Law Dictionary is commonly accepted and provides: "Client. A person who employs or retains an attorney, or counsellor, to appear for him in courts, advise, assist, and defend him in legal proceedings, and to act for him in any legal business . . . It should include one who disclosed confidential matters to attorney while seeking professional aid, whether attorney was employed or not.

In the context of a paternity action commenced at the request of the Department of Social and Health Services, the prosecutor's first client is the State of Washington, Department of Social and Health Services. Clearly the prosecutor is "employed or retained" by D.S.H.S. when his office accepts (either voluntarily or by compulsion of the law) the responsibility to prosecute the action.

The prosecutor's second client may be the natural mother is the prosecutor agrees, impliedly or expressly, to appear for her in court; advise, assist or defend her in the proceedings; or act for her in the proceeding. Additionally the prosecutor may form an attorney/client relationship if he receives confidential information in the process of the initial interview with the natural mother.

If the prosecutor advises the natural mother from the onset that he will not represent her in the proceedings, he may avoid the analysis that follows. Otherwise, the committee recommends that in each of the above hypotheticals, at a minimum, the prosecutor should undertake the following analysis: (1) Will the representation of the mother be directly adverse to the attorney's representation of his other client (D.S.H.S., O.S.E., etc.). If so, then: (a) Will the representation of either the mother or the other client of the attorney be adversely affected by the joint representation by the attorney? If so, separate representation should be arranged. If not, then: (b) Has the mother been given a reasonable opportunity to seek advice of independent counsel? If not, the potential conflicts should be explained and such opportunity should be provided. The prosecutor should obtain authority, if not already received, to disclose the material facts and interests of his other clients. The mother should be fully advised of the attorney's other clients and their respective interests in the litigation.

(2) Will each of the clients consent in writing after consultation and a full disclosure of the material facts? If so, such consents should be obtained before the representation continues.

(3) Does the client have resources with which to retain independent counsel in the event consent is not obtained? If not, then the attorney should advise the client of the possible availability of private counsel appointed by the court and take such action as is reasonably practicable to assist the client in securing such counsel. (RPC 1.15 [d]).

Other issues remaining in the hypotheticals are in many cases a mixture of legal questions and ethical questions. This Committee is restricted from giving opinions as to legal questions.