LEO: Representing a Client Within the Bounds  LE Op. 1084


Representing a Client Within the Bounds of Law.


June 14, 1988


You advise that you represent the husband in a divorce proceeding. The

wife is mentally competent, but is severely handicapped physically and is

in a nursing home. It is expected that she will spend the remainder of her

years in the nursing facility. The husband is employed at present, but

will retire shortly. Between the two of them, there are very limited

funds. Through the efforts of members of her family, the wife is now

receiving Medicare and Medicaid as well as some county supplemental

support. These funds were arranged for her prior to the divorce action.


You and opposing counsel have agreed that maintaining federal, state

and/or county support for the wife in this instance is of crucial

importance to both parties. You have sought guidance from the federal

agencies administering the aid programs, but have been unable to get any

clear direction as to how and when such funding could be withdrawn or



Hearings in the matter have been heard before a commissioner in chancery

and at this point, a final decree may be entered. Counsel for the wife

will seek to have a reservation of support put in the final decree as a

necessary protection for his client and you, as counsel for the husband,

do not intend to contest that she is entitled to such a reservation.

However, a recipient of federal aid is required to notify the appropriate

authority when their marital status changes, which of course, could prompt

the authorities to review the provisions of such a decree for support and

maintenance, if any. The concern then arises that the wife will face the

choice of proceeding against the husband for support as a condition for

keeping any Medicare and/or Medicaid assistance.


It has been suggested that two decrees be prepared. The first would be a

decree of divorce which sets out all of the operative clauses, findings,

etc., that a divorce decree generally has, except there would be no

provision for a reservation of support. A second decree, containing that

revision, would be submitted to the court thereafter, but within the 21-

day period. In the latter, the reservation would be provided for but the

decree itself would not contain any language concerning that reservation.


You wish to know if there is anything improper with this proposed course

of action. It is apparent that the purpose of having these two decrees

entered is to induce the federal authorities to conclude incorrectly that

no reservation of support was decreed. Even if the federal authorities

reached this false conclusion through no other action on the part of you,

opposing counsel or your clients, the filing of the two decrees in itself

would have been the intended as well as the actual cause that they were

misled. Thus, such action would violate DR:1-102(A)(4) and DR:7-102(A)(

7). Furthermore, if the client has a legal duty to provide full

information to the federal authorities, then there may also be a violation

of DR:7-102(A)(3) on the part of the attorney representing that client.


Committee Opinion June 14, 1988