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The Florida Bar
(September 21, 2011)

     Lawyers employed by the State Attorney’s Office assigned to represent the Florida Department of Revenue in child support cases represent the department, not individual parents, and owe no duty of confidentiality or loyalty to the individual parents. The lawyer must comply with rules on dealing with unrepresented persons in dealing with the parents. The impact of statutes on attorney-client privilege on this issue is a legal question, outside the scope of an ethics opinion.

RPC: 4-4.3
Opinions:92-2 (withdrawn)
Cases:In re Amendments to Family Law Rules, 995 So.2d 407 (Fla. 2008); Department of Revenue v. Collingwood, 43 So. 3d 952 (Fla. 1st DCA 2010)
Statutes:F.S. §§ 409.2564(11); 90.502(5)
Rules of Procedure:Family Law Rule of Procedure 12.040

     The State Attorney for the Eleventh Judicial Circuit of Florida has requested the Committee to review, modify, or withdraw Ethics Opinion 92-2 and to address the ethical limitations, if any, placed on individual lawyers in her office when representing the Florida Department of Revenue (DOR) in Social Security Title IV-D support cases. The Committee recently reconsidered and withdrew Ethics Opinion 92-2. This opinion replaces it.

     By statute, DOR is assigned overall responsibility for administering the Title IV-D child-support program in Florida. The State Attorney for the Eleventh Judicial Circuit represents DOR in those matters in Miami-Dade County. This representation involves court cases for the determination of paternity, establishment of support, modification of support, and enforcement of support. In the course of this representation, assistant state attorneys collect financial and other information from the recipients of DOR’s services that might be deemed confidential in a lawyer-client relationship. Section 409.2564(11), Florida Statutes, requires DOR to review child-support obligations to determine whether the amounts remain consistent with current support guidelines and authorizes DOR to seek adjustments when appropriate. Pursuant to this review process, DOR may find itself proceeding against a parent on whose behalf it previously had proceeded. For example, DOR may seek to enforce a child-support obligation against a noncustodial parent and later seek a reduction of that support order on the noncustodial parent’s behalf.

     Section 409.2564(5), Florida Statutes, provides that “[a]n attorney-client relationship exists only between the department and the legal services providers in all Title IV-D cases.”
In Ethics Opinion 92-2 (1992), the Committee addressed whether a lawyer who represented the Florida Department of Health and Rehabilitative Services (HRS) in providing child-support services to a parent and received confidential information from that parent could ethically later act adversely to that parent in a matter involving that confidential information. Although acknowledging that under Florida law the lawyer represented HRS rather than the parent, the Committee stated the following:

           The ethical question presented, however, cannot be answered simply by reference to the above statute and Rule 4-4.3 [dealing with unrepresented persons]. As a practical matter, if an attorney who represents HRS in a particular child support matter deals closely with and acts on behalf of a parent, that parent ordinarily will believe that the attorney represents the parent’s interests. The parent also will believe that information he or she discloses to the attorney will remain confidential and will not be used to his or her disadvantage.
     The Committee relied on “the likelihood of [a parent’s] reasonable belief” in opining that a lawyer who represents HRS in providing child-support services to a parent “owes certain ethical duties to the parent.” The Committee concluded:

           At a minimum, it would be unethical for an attorney who has received confidential information from one parent to later act adversely to that parent in a matter involving that confidential information. Such an action would be tantamount to prohibited “side-switching” in the same or a substantially related matter.
     In 2008, the Supreme Court of Florida adopted proposed amendments to Family Law Rule of Procedure 12.040, adding subsection (c) addressing the scope of representation. The Court adopted the DOR proposal regarding representation of the State in child support enforcement matters, filed as a comment in response to the petition of The Florida Bar’s Family Law Rules Committee. Subdivision (c)(2) as adopted by the Court provides as follows:

     An attorney for the State's Title IV-D child support enforcement agency who appears in a family law matter governed by these rules shall file a notice informing the recipient of Title IV-D services and other parties to the case that the IV-D attorney represents only the Title IV-D agency and not the recipient of IV-D services. The notice must state that the IV-D attorney may only address issues concerning determination of paternity, and establishment, modification, and enforcement of support obligations. The notice may be incorporated into a pleading, motion, or other paper filed with the court when the attorney first appears.
    In re Amendments to Family Law Rules, 995 So.2d 407 (Fla. 2008).

         More recently, the District Court of Appeal of Florida, First District, addressed this issue in Department of Revenue v. Collingwood, 43 So. 3d 952 (Fla. 1st DCA 2010). In Collingwood DOR originally filed a contempt proceeding against the father seeking to enforce a child-support obligation. DOR later filed a petition seeking to recalculate the father’s support obligation based on a reduction in income. The mother asked the lower court to prohibit DOR from representing the father, citing a conflict of interest based on the previous contempt proceeding. The lower court granted the mother’s request and directed the father to retain private counsel or proceed pro se. Id. at 954. The First District reversed, stating:

          The [lower] court may have concluded that the department's action seeking downward modification was inequitable because the previous action seeking child support for the mother from the father created a conflict of interest. According to state statutes and rules, however, the department's counsel represents the department and does not represent either parent, so there is no conflict.

         If it was not clear at the time that the Committee issued opinion 92-2, it is clear now: Because the parent as a matter of law is not a client of the lawyer representing DOR, that lawyer owes the parent none of the ethical obligations that are premised on the existence of a lawyer-client relationship, including the obligations of loyalty and confidentiality. Accordingly, there are no ethical limitations on the lawyer’s representing DOR in its (DOR’s) providing services to a parent, regardless of a prior representation in which the services were provided to the other parent.

        Rule 4-4.3(a), however, still applies. Rule 4-4.3(a) provides the following:
           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. The lawyer shall not give legal advice to an unrepresented person, other than the advice to secure counsel.

        The Committee is not unmindful of section 90.502(5), Florida Statutes, which provides the following:
           Communications made by a person who seeks or receives services from the Department of Revenue under the child support enforcement program to the attorney representing the department shall be confidential and privileged as provided for in this section. Such communications shall not be disclosed to anyone other than the agency except as provided for in this section. Such disclosures shall be protected as if there were an attorney-client relationship between the attorney for the agency and the person who seeks services from the department.
    Fla. Stat. § 90.502(5) (emphasis added). Although the Committee believes that this provision does not in itself create a lawyer-client relationship between the lawyer and the recipient of DOR’s services, its impact is a legal question beyond the scope of an ethics opinion.

    [Revised: 02-11-2013]