Publication Date

4-1999

Document Type

Article

Abstract

Attorneys for the poor are being asked to serve more clients for less money and with more restrictions on their practice than ever before. These restrictions, both on amounts and uses of funds, influence the attorney's independent professional judgment. Determining when that influence is inappropriate becomes a difficult practical and ethical issue. Is this issue resolved if one simply reconceptualizes the role of the entities and individuals involved? What if the government becomes the client and the individual receiving legal services becomes something other than a client? Examining the development of governmental funding of child support enforcement, one finds just such a change in characterization has occurred. Even in the face of massive cutbacks on federal support for welfare and legal assistance alike over the past twenty years, the governmental role in child support enforcement has swelled and no cutbacks are forecast. Accompanying this growth has been an increasing focus on the ethical issues presented by this representation. When the attorneys enforcing private child support orders are employed by the state, identifying the client becomes a critical ethical task. Looked at from the client's perspective, the role of the attorney appears little different than the role of other legal services attorneys. The government is simply a third-party funder or, at best, a co-client similar to insurance companies whose attorneys represent both insurer and insured. Under either of these views, the attorney would owe a duty to the parent as client. Ten years ago, the states were significantly split on the this issue of client identity. Today, nearly all states have statutes that specifically exclude the custodial parent as a client. These statutes seemingly resolve the issue of dual representation or third-party interference with the lawyer-client relationship. New issues arise, of course, regarding the attorney's duty to be forthright with the recipients of legal services about the nature of the relationship-but there is little question about who gets to define the scope of representation or agree to limitations on that scope. Could this same recharacterization occur in other areas of government funding of legal services? Would such a recharacterization truly solve the ethical dilemmas presented by government restrictions on attorney representation? Part I this Article provides some background on the role of child support enforcement attorneys. Parts II and III explores the reasons for characterizing the parent as client and the issues such a characterization raises. Finally, part IV examines statutes that deem the state to be the sole client in these actions and will consider their philosophy, legality, and effectiveness.

Publication Title

Fordham Law Review

Volume

67

Issue

5

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