Child Support; Attorneys at Law; Unauthorized Practice of Law

Subject:

Child Support; Attorneys at Law; Unauthorized Practice of Law; Article 9 of G.S. Chapter 110; Title IV-D of the Social Security Act (Public Law 93-647).

Requested By:

Mr. David R. Johnson Staff Attorney The North Carolina State Bar

Question:

Does the provision of G.S. 110-135 stating that "(t)he county attorney or an attorney retained by the county and/or State shall represent the State in all proceedings brought under this section", apply to all actions brought under the Child Support Enforcement Act?

Conclusion:

The quoted provision applies to all proceedings brought by or on behalf of the State under G.S. 110-135 and G.S. 110-137.

Your inquiry specifically mentions G.S. 110-130, G.S. 110-135 and 110-137. All of these sections were originally promulgated as part of a single act of the General Assembly, Chapter 827 of the Session Laws of 1975, codified as Article 9 of G.S. Chapter 110 (G.S. 110-28 through 110-41). In seeking to discover and give effect to legislative intent, the Act must be construed as a whole. State v. Harvey, 231 N.C. 1. The intent and spirit of the Act are controlling in its construction. Re North Carolina Fire Insurance Rating Bureau, 275 N.C. 15.

G.S. 110-128 enumerates the purposes of the Act, concluding with a purpose ". . . to provide for the establishment and administration of a program of child support enforcement in North Carolina." This has reference to a program contemplated and provided for in Title IV-D of the Social Security Act. This is confirmed by the 1977 Amendment to G.S. 110-129 wherein a definition of the word "program" was established, as follows:

"(4) "Program" means the Child Support Enforcement Program established and administered pursuant to the provisions of this Article and Title IV-D of the Social Security Act."

The purpose of the Child Support Enforcement (IV-D) Program is to insure that absent parents support their children. If the children are receiving public assistance, the debt of child support is owed to the State by virtue of a required assignment of rights of support. Child support collected for AFDC children is generally retained by the State and treated as reimbursement of AFDC funds. The State distributes this money to county, State and federal governments according to a formula based upon the amount of their respective participation in the financing of the AFDC. Child support collected which is not owed to the State as reimbursement is ultimately paid to the resident parent or caretaker.

The North Carolina program utilizes, where possible, local county-operated child support enforcement agencies. This is accomplished by a voluntary agreement between a participating county and the State child support enforcement agency. While the majority of the counties operate these programs, it has become necessary for State-operated programs to cover a number of counties since it is required that the program be operated State-wide. The State Act was subsequently amended to better accommodate this dual system of program operation. (Chapter 1185 of the Session Laws of 1977, Second Session 1978). The Act as originally written contemplated that the State could pursue reimbursement of public assistance paid for a dependent child by action to recover a debt created directly to it against a responsible parent. Necessary representation in the locality where such an action would have to be brought was assured by requiring that the county attorney represent the State. The 1977 Amendment, as it pertained to

G.S. 110-137, made it clear that, in addition to the debt collection provisions of G.S. 110-135, the State could proceed under the theory of subrogation by reason of assignment of the right of child support. The funds which the State might seek to recover in a proceeding utilizing its rights of subrogation would not cease to be the subject of the debt to the State referred to in G.S. 110

135. It would not be reasonable to assume that the General Assembly made provisions concerning attorneys to represent the State, the applicability of which would depend upon the theory under which an action is brought by or on behalf of the State when the relief sought is essentially the same. We are, therefore, of the opinion that the last sentence of G.S. 110-135 (pertaining to representation of the State by an attorney) pertains to proceedings instituted by or on behalf of the State under either G.S. 110-135 or 110-137.

Practical experience in the operation of the State-wide child support enforcement program under the original Act has demonstrated that legal representation by a county attorney in State-instituted proceedings is not always feasible. We believe that the 1977 Amendment to the last sentence of

G.S. 110-135 was solely for the purpose of authorizing representation of the State by retained attorneys, as well as county attorneys in recognition of the practical situation.

Your inquiry springs from a question concerning whether certain activities by "Title IV-D agents in the County Department of Social Services" would constitute unlawful practice of law. Significantly, G.S. 110-135 makes the edict regarding legal representation applicable only to "all proceedings brought under this section" (emphasis supplied) as distinguished from any broader concept. This simple, straight-forward language makes it abundantly clear that the General Assembly did not intend thereby to tangentially delve into the policing of the practice of law which is regulated elsewhere in the General Statutes. The obvious intent of the General Assembly was to provide to the State representation by a county attorney or retained attorney where deemed necessary in this type of action. This conclusion is required notwithstanding the recognition, that, as a practical matter:

(a)

the quoted provision must of necessity apply to both G.S. 110-135 and G.S. 110-137 where representation of the State is involved; and

(b)

by virtue of specific agreements with the State, the counties are in virtually all instances operating as agents of the State so that the provisions dealing with legal representation are applicable.

In short, the purpose of the Article is to facilitate an effective child support enforcement program and not to dictate, beyond the scope of the statutes and case law pertaining specifically to this subject, when the services of an attorney must be used or what constitutes unauthorized practice of law.

Rufus L. Edmisten Attorney General

William F. Briley Assistant Attorney General