Ethical Concerns Facing Ethical Concerns Facing Title IV-D AttorneysTitle IV-D Attorneys

M. Scott Keim M. Scott Keim Idaho Office of the Attorney Idaho Office of the Attorney

GeneralGeneral

Steven Tobiason Steven Tobiason Kane & Tobiason, LLPKane & Tobiason, LLP

Model Rules Terminology Model Rules Terminology Rule 1.0Rule 1.0

Belief – “can be inferred”Belief – “can be inferred” Reasonable, Reasonable belief, Reasonable, Reasonable belief,

Reasonably should know – all denote Reasonably should know – all denote prudence and competence in the prudence and competence in the lawyerlawyer

Informed consent – key for Informed consent – key for confidentiality and conflict issuesconfidentiality and conflict issues

Confirmed in writing- also key for Confirmed in writing- also key for conflictsconflicts

Terminology Rule 1.0 – cont.Terminology Rule 1.0 – cont.

Firm – keys on mutual access to Firm – keys on mutual access to client informationclient information

Screened – isolation of a firm Screened – isolation of a firm member from a particular mattermember from a particular matter

Tribunal –Not limited to a court but Tribunal –Not limited to a court but more broad and encompassing, more broad and encompassing, similar to the UIFSA definitionsimilar to the UIFSA definition

Confidentiality – Rule 1.6Confidentiality – Rule 1.6General RuleGeneral Rule

““A lawyer shall not reveal A lawyer shall not reveal information relating to the information relating to the representation of a client unless the representation of a client unless the client gives informed consent, the client gives informed consent, the disclosure is impliedly authorized in disclosure is impliedly authorized in order to carry out the representation order to carry out the representation or the disclosure is permitted by or the disclosure is permitted by paragraph (b)”paragraph (b)”

Confidentiality – Rule 1.6Confidentiality – Rule 1.6ExceptionsExceptions

Paragraph (b)Paragraph (b) Prevent death or Prevent death or substantialsubstantial bodily harm bodily harm Prevent, mitigate or rectify a crime by the Prevent, mitigate or rectify a crime by the

client resulting in client resulting in substantialsubstantial damages to damages to another which has been furthered by another which has been furthered by attorney’s representationattorney’s representation

To get legal advice about attorney’s To get legal advice about attorney’s compliance with ethical rulescompliance with ethical rules

Establish claims or defenses in civil or criminal Establish claims or defenses in civil or criminal litigation involving representation of the clientlitigation involving representation of the client

To comply with the law or an order of a courtTo comply with the law or an order of a court

Conflicts of InterestConflicts of Interest

Current Conflicts - Rule 1.7Current Conflicts - Rule 1.7Except as provided in paragraph (b), a lawyer shall Except as provided in paragraph (b), a lawyer shall

not represent a client if the representation not represent a client if the representation involves a concurrent conflict of interest. A involves a concurrent conflict of interest. A concurrent conflict of interest exists if:concurrent conflict of interest exists if:

(1) the representation of one client will be directly (1) the representation of one client will be directly adverse to another client; adverse to another client; oror

(2) there is a significant risk that the representation (2) there is a significant risk that the representation of one or more clients will be materially limited by of one or more clients will be materially limited by the lawyer's responsibilities to another client, a the lawyer's responsibilities to another client, a former client or a third person or by a personal former client or a third person or by a personal interest of the lawyer. interest of the lawyer.

Conflicts of Interest – cont. 1Conflicts of Interest – cont. 1

Under rule 1.7 a lawyer may still represent a client Under rule 1.7 a lawyer may still represent a client if:if:

(1) the lawyer reasonably believes that the lawyer (1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent will be able to provide competent and diligent representation to each affected client;representation to each affected client;

(2) the representation is not prohibited by law;(2) the representation is not prohibited by law;(3) the representation does not involve the (3) the representation does not involve the

assertion of a claim by one client against another assertion of a claim by one client against another client represented by the lawyer in the same client represented by the lawyer in the same litigation or other proceeding before a tribunal; litigation or other proceeding before a tribunal; andand

(4) each affected client gives informed consent, (4) each affected client gives informed consent, confirmed in writing.confirmed in writing.

Conflicts of Interest – cont. 2Conflicts of Interest – cont. 2Rule 1.9 Duties to Former ClientsRule 1.9 Duties to Former Clients

Same duty of confidentiality owed Same duty of confidentiality owed after representation is completeafter representation is complete

A lawyer shall not represent a party A lawyer shall not represent a party in the same or a substantially similar in the same or a substantially similar matter adverse to a former client matter adverse to a former client (personal or firm) – unless waived by (personal or firm) – unless waived by former clientformer client

Conflicts of Interest – cont. 3Conflicts of Interest – cont. 3 Imputed Conflicts – Rule 1.10 Imputed Conflicts – Rule 1.10

Conflicts under Rules 1.7 or 1.9 are Conflicts under Rules 1.7 or 1.9 are imputed to all members of a firm imputed to all members of a firm unless based on a personal interest unless based on a personal interest of a specific member that will not of a specific member that will not materially limit the representation of materially limit the representation of the clientthe client

Can be waived by the client with Can be waived by the client with informed consent confirmed in informed consent confirmed in writingwriting

Conflicts of Interest – cont. 4Conflicts of Interest – cont. 4 Government Issues – Rule 1.1 Government Issues – Rule 1.1

A former government official/employee may not:A former government official/employee may not: Represent an individual in a matter that the Represent an individual in a matter that the

lawyer personally and substantially lawyer personally and substantially participated in unless the government agency participated in unless the government agency waives objection to representationwaives objection to representation This disqualification is imputed to the lawyer’s firm This disqualification is imputed to the lawyer’s firm

unless lawyer is “screened”unless lawyer is “screened” Disclose confidential information learned Disclose confidential information learned

during course of government workduring course of government workA current government official/employee may not: A current government official/employee may not: participate in a matter the lawyer was involved participate in a matter the lawyer was involved

in while in private practicein while in private practice

Third Party Neutrals – Third Party Neutrals – Rules 2.2 & 1.12Rules 2.2 & 1.12

Definition set forth in Rule 2.2Definition set forth in Rule 2.2• ““A lawyer serves as a third-party neutral when A lawyer serves as a third-party neutral when

the lawyer assists two or more persons who the lawyer assists two or more persons who are not clients of the lawyer to reach a are not clients of the lawyer to reach a resolution of a dispute or other matter that resolution of a dispute or other matter that has arisen between them.” has arisen between them.”

• Must inform unrepresented parties:Must inform unrepresented parties:• Does not represent their interestsDoes not represent their interests• Explain role as neutralExplain role as neutral

Conflict Rule set forth in Rule 1.12Conflict Rule set forth in Rule 1.12• Cannot represent anyone in a matter on which Cannot represent anyone in a matter on which

the lawyer served as a third party neutral the lawyer served as a third party neutral without informed consent from all parties without informed consent from all parties confirmed in writingconfirmed in writing

Meritorious Claims and Contentions Meritorious Claims and Contentions – Rule 3.1– Rule 3.1

““A lawyer shall not bring or defend a A lawyer shall not bring or defend a proceeding, or assert or controvert proceeding, or assert or controvert an issue therein, unless there is a an issue therein, unless there is a basis in law and fact for doing so basis in law and fact for doing so that is not frivolous, which includes that is not frivolous, which includes a good faith argument for an a good faith argument for an extension, modification or reversal extension, modification or reversal of existing law.” of existing law.”

Candor and Fairness –Candor and Fairness –Rules 3.3 & 3.4Rules 3.3 & 3.4

Candor to Tribunal – Rule 3.3 – A lawyer:Candor to Tribunal – Rule 3.3 – A lawyer:• Will not make or fail to correct a false statement Will not make or fail to correct a false statement

of law or factof law or fact• Must disclose controlling legal authority directly Must disclose controlling legal authority directly

adverse to the attorney’s positionadverse to the attorney’s position• Must take remedial measures to correct criminal Must take remedial measures to correct criminal

or fraudulent activities relating to pending or fraudulent activities relating to pending litigation involving the lawyerlitigation involving the lawyer

Fairness to Opposition – Rule 3.4 - A lawyer:Fairness to Opposition – Rule 3.4 - A lawyer:• Will not unlawfully obstruct access to evidence Will not unlawfully obstruct access to evidence • Will not falsify evidence or instruct another to do Will not falsify evidence or instruct another to do

soso• Will not disobey an order of a courtWill not disobey an order of a court• Etc.Etc.

Dealing With Unrepresented Dealing With Unrepresented Persons – Rule 4.3Persons – Rule 4.3

In dealing on behalf of a client with a In dealing on behalf of a client with a person who is not represented by counsel, person who is not represented by counsel, a lawyer shall not state or imply that the a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer lawyer is disinterested. When the lawyer knows or reasonably should know that the knows or reasonably should know that the unrepresented person misunderstands the unrepresented person misunderstands the lawyer’s role in the matter, the lawyer shall lawyer’s role in the matter, the lawyer shall make reasonable efforts to correct the make reasonable efforts to correct the misunderstanding. The lawyer shall not misunderstanding. The lawyer shall not give legal advice to an unrepresented give legal advice to an unrepresented person, other than the advice to secure person, other than the advice to secure counsel, if the lawyer knows or reasonably counsel, if the lawyer knows or reasonably should know that the interests of such a should know that the interests of such a person are or have a reasonable possibility person are or have a reasonable possibility of being in conflict with the interests of the of being in conflict with the interests of the client. client.

Reporting Professional MisconductReporting Professional MisconductRule 8.3Rule 8.3

A lawyer who knows that another lawyer A lawyer who knows that another lawyer has committed a violation of the Rules of has committed a violation of the Rules of Professional Conduct that raises a Professional Conduct that raises a substantial question as to that lawyer's substantial question as to that lawyer's honesty, trustworthiness or fitness as a honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the lawyer in other respects, shall inform the appropriate professional authority. appropriate professional authority.

Scenario 1 –Scenario 1 –Who’s line is it anyway? Who’s line is it anyway?

You have been asked by the state IV-D agency to You have been asked by the state IV-D agency to establish a child support order against Dad, Al B. establish a child support order against Dad, Al B. Lobidder, who is the owner of a large paving Lobidder, who is the owner of a large paving company that works on a lot of government road company that works on a lot of government road projects. You and dad’s attorney have engaged in projects. You and dad’s attorney have engaged in significant discovery regarding financial issues but significant discovery regarding financial issues but are about to resolve the matter. are about to resolve the matter. Out of the blue you receive a call from an attorney Out of the blue you receive a call from an attorney with the State Attorney General’s Office who is with the State Attorney General’s Office who is investigating Lobidder for fraud in his government investigating Lobidder for fraud in his government contracts and believes that the discovery and other contracts and believes that the discovery and other documents you have gathered may help in his documents you have gathered may help in his investigation and want to come by your office to investigation and want to come by your office to review your file.review your file.

Who’s line is it anyway?Who’s line is it anyway?Other issuesOther issues

Does it matter if the AG sends you a subpoena.Does it matter if the AG sends you a subpoena. What if you are also an AG employee?What if you are also an AG employee? Do public records laws have any impact on the Do public records laws have any impact on the

request?request? Can you use this as a negotiating point to try Can you use this as a negotiating point to try

and convince Dad to stipulate to the support?and convince Dad to stipulate to the support? What if instead of seeking to establish support What if instead of seeking to establish support

you are seeking a downward modification?you are seeking a downward modification? What if the crime being investigated is related What if the crime being investigated is related

to allegations of child pornography with to allegations of child pornography with children essentially the same age and gender children essentially the same age and gender as the child in the case? as the child in the case?

Scenario 2 –Scenario 2 –Who’s the boss?Who’s the boss?

Six years ago you pursued a paternity Six years ago you pursued a paternity action and obtained a support and filiation action and obtained a support and filiation order in favor of mom, Alyssa Milano, at the order in favor of mom, Alyssa Milano, at the request of your state IV-D agency. Last request of your state IV-D agency. Last week you were approached by the father, week you were approached by the father, Danny Pintauro, who wants you to represent Danny Pintauro, who wants you to represent him in a downward modification because his him in a downward modification because his acting career has gone into the tank, and acting career has gone into the tank, and he thought you were very fair in the he thought you were very fair in the paternity proceedings. Can you accept the paternity proceedings. Can you accept the representation?representation?

Who’s the boss?Who’s the boss?Other issuesOther issues

Is it okay if you get a written waiver from Is it okay if you get a written waiver from Alyssa?Alyssa?

Instead of coming to you directly Danny Instead of coming to you directly Danny requests the mod through the IV-D agency requests the mod through the IV-D agency and they ask you to pursue the mod.and they ask you to pursue the mod.

Danny files the mod on his own, however, Danny files the mod on his own, however, Alyssa calls your office claiming you were Alyssa calls your office claiming you were her lawyer and demands that you her lawyer and demands that you represent her again.represent her again.

Scenario 3 –Scenario 3 –The Devil’s AdvocateThe Devil’s Advocate

You are at a meeting of the family law You are at a meeting of the family law section of the bar and overhear an section of the bar and overhear an attorney, Falle N. Angel, who you work attorney, Falle N. Angel, who you work with regularly in your IV-D cases with regularly in your IV-D cases telling the bartender how she has telling the bartender how she has instructed her client, the mother in the instructed her client, the mother in the case, to testify that her current case, to testify that her current husband owns by himself the small husband owns by himself the small business that they have together in business that they have together in order to get a larger support order. Do order to get a larger support order. Do you need to tell anyone? Who? When?you need to tell anyone? Who? When?

The Devil’s AdvocateThe Devil’s AdvocateOther issuesOther issues

Do you warn the attorney and tell her Do you warn the attorney and tell her you will inform the court if she you will inform the court if she presents the testimony you presents the testimony you overheard?overheard?

What if you have appeared in the What if you have appeared in the action on behalf of the IV-D agency?action on behalf of the IV-D agency?

If you have appeared can you use If you have appeared can you use the conversation to cross examine the conversation to cross examine mom?mom?

Scenario 4 – Scenario 4 – Ricochet Ricochet

Just last month you finished up a downward Just last month you finished up a downward modification that had been referred to you by modification that had been referred to you by your state’s IV-D agency in which dad, Nota your state’s IV-D agency in which dad, Nota Payer, who did not have an attorney Payer, who did not have an attorney stipulated to the support and provided his tax stipulated to the support and provided his tax returns for the past two years. Now you have returns for the past two years. Now you have been asked by the IV-D agency to seek a new been asked by the IV-D agency to seek a new paternity order against Dad for a different paternity order against Dad for a different child with a different mom. Dad is now child with a different mom. Dad is now refusing to provide any income information to refusing to provide any income information to either you or mom’s personal attorney. Can either you or mom’s personal attorney. Can you utilize the tax records provided in you utilize the tax records provided in modification to determine dad’s income in the modification to determine dad’s income in the establishment case? establishment case?

RicochetRicochetOther IssuesOther Issues

Does it matter if dad had been represented Does it matter if dad had been represented by an attorney in the prior mod?by an attorney in the prior mod?

Who would you need to obtain a waiver Who would you need to obtain a waiver from if you wanted to seek one?from if you wanted to seek one?

What if instead of refusing to provide What if instead of refusing to provide income information, dad testifies that he income information, dad testifies that he earns significantly less than his tax records earns significantly less than his tax records show?show?

What if the tax returns had been provided What if the tax returns had been provided not directly to you but had been provided not directly to you but had been provided to the IV-D agency and entered into it’s to the IV-D agency and entered into it’s automated system?automated system?