The following legal opinion was handed down by The Florida Bar Oct. 1, 1992 and deals with how an attorney that represents HRS may handle information pertaining to the parent of a child in the HRS system.
An attorney who represents HRS in providing child support services to a parent and receives confidential information from that parent may not later act adversely to that parent in a matter involving that confidential information. This would be tantamount to prohibited “side-switching” in the same or a substantially related matter.
The inquiring attorney represents the Florida Department of Health and Rehabilitative Services (“HRS”) in child support enforcement matters under the Title IV-D program. The attorney’s representation of HRS has included litigation to establish or to enforce child support obligations for the benefit of custodial parents. The attorney states that, in an apparent change from prior policy, the federal office of child support enforcement now requires HRS to provide legal services to non-custodial parents on the same basis as those services are provided to custodial parents. Accordingly, HRS has advised attorneys who represent it in child support matters that the same attorney who, when representing HRS, previously acted on behalf of one parent in establishing or enforcing a support obligation subsequently might be asked by HRS to provide legal services to the other parent (i.e., the adverse party).
The inquirer is concerned that an impermissible conflict of interest would be presented if he were to comply with such a request from HRS. His letter states:
There appears to be an irreconcilable conflict in the subsequent representation of an adverse party. Conceivably, we could be asked to change sides repeatedly. We would represent one party to establish an obligation, represent the other if he wishes to later modify or terminate the support, and even later go back to representing the original party to enforce a delinquent obligation.
The committee begins by acknowledging that, under Florida law, an attorney engaged by HRS to provide legal assistance to a parent in a child support case represents HRS rather than the parent:
Whenever the IV-D agency has undertaken an action to determine paternity, to establish an obligation of support, or to enforce or modify an obligation of support, the IV-D agency shall be a party to the action only for those purposes allowed under Title IV-D of the Social Security Act. The program attorney shall be the attorney of record solely for the purposes of support enforcement as authorized under Title IV-D and may prosecute only those activities which are eligible for federal financial participation under Title IV-D. An attorney-client relationship exists only between the department and the legal services providers in all Title IV-D cases. The attorney shall advise the obligee in Title IV-D cases that the attorney represents the agency and not the obligee.
F.S. section 409.2564(5) (emphasis added).
Rule 4-4.3, Rules Regulating The Florida Bar, requires any attorney who represents HRS in providing legal assistance to a parent in a child support matter to inform the parent that, under Florida law, the attorney’s client is HRS rather than the parent.
The ethical question presented, however, cannot be answered simply by reference to the above statute and Rule 4-4.3. 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 parent’s expectations in this regard would be heightened if reference was made to the recently amended Florida Evidence Code:
Communications made by a person who seeks or receives services from the Department of Health and Rehabilitative Services 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.
F.S. section 90.502(5) (emphasis added).
An analogous situation can occur when attorneys represent closely held corporations. Rule 4-1.13 clearly states that an attorney who represents a corporation represents the corporate entity rather than the individual constituents (e.g., officers, directors, shareholders) of the corporation. Yet courts sometimes have declined to apply this general rule and instead have examined the underlying circumstances to determine whether an individual constituent reasonably believed that he or she individually had an attorney-client relationship with the attorney. See, e.g., Rosman v. Shapiro, 653 F.Supp. 1441 (S.D.N.Y. 1987); In re Banks, 584 P.2d 284 (Ore. 1978). The likelihood of such a reasonable belief would seem to be even greater when an attorney is acting on behalf of a parent in the often emotionally-charged child support arena.
The committee therefore opines that an attorney who represents HRS in providing child support services to a parent owes certain ethical duties to the parent. 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. See Rule 4-1.9.
Furthermore, the committee believes that this ethical problem cannot be cured by the insertion of a “waiver provision” in the contract that the parent signs with HRS. It is unreasonable to assume that a parent would fully understand and appreciate the significance of such a waiver provision contained in a contract of adhesion. Few parents have any bargaining power with HRS, and many would be unable to obtain legal assistance in child support matters unless they accepted the terms offered in the HRS contract. See Rule 4-1.7, Comment.