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In re Support Proceeding of Zwick

Family Court, Essex County

December 3, 2013

In the Matter of a Support Proceeding David William Zwick, Petitioner,
Caitlin Anne Wargo, Respondent.

Michael J. Gallant, Esq., Elizabethtown, for David William Zwick

David D. Scaglione, Esq., Elizabethtown, for Caitlin Anne Wargo.


On July 12, 2012, David William Zwick filed a petition seeking to modify this Court's January 11, 2010 Order of Support regarding the child Zachary, d/o/b: xx/xx/xxxx.

At the hearing on his petition, Mr. Zwick appeared telephonically before Support Magistrate Jonathan Heussi. Before calling Mr. Zwick, the Support Magistrate stated "Mr. Gallant is here representing Mr. Zwick...". Attorney Gallant did not dispute this statement. After Mr. Zwick was on the phone, the Support Magistrate stated, "... we have Mr. Gallant here representing your interests...". Again, Attorney Gallant did not dispute this statement.

At the hearing on Mr. Zwick's petition, Ms. Wargo appeared in person. Immediately after noting Ms. Wargo's presence, the Support Magistrate asked Attorney Scaglione if he was "involved in this" and Attorney Scaglione answered "yes." Thereafter Attorney Scaglione spoke on Ms. Wargo's behalf during the hearing.

The Support Magistrate issued an Amended Order Modifying an Order of Support dated September 13, 2012 granting Mr. Zwick's application for a downward modification of his child support obligation. On behalf of Ms. Wargo, Attorney Scaglione, filed written objections and stated "I represented the Respondent, Caitlin Wargo, at a support modification hearing...". Attorney Gallant filed a reply to the objection, on behalf of Mr. Zwick and stated, "I represent the Petitioner, David William Zwick..."

Both Attorney Scaglione and Attorney Gallant are Assistant County Attorneys for Essex County. The Court, in correspondence to counsel, expressed concern about the attorneys' potential conflict of interest and provided both attorneys an opportunity to address the issue in writing [1]. Attorney Scaglione did not respond to the Court's letter. Attorney Gallant responded, in part, as follows.

I am the Essex County Assistant County Attorney for Social Services. One of my duties is to represent a parent in Support Court when asked by the Support Collection Unit. Another Assistant County Attorney (David Scaglione) handles all the support cases for DSS. I do fill in periodically when the regular Assistant County Attorney is absent or cannot proceed for other reasons.

In the instant case, I represented the father's (Zwick) petition in a support proceeding (at the request of CSEU) and the other Assistant County Attorney represented the mother's (Wargo) position. Both parents were aware that both of the attorneys were Assistant County Attorneys and signed a LDSS-4920 form which states in part that the CSEU attorneys do not represent the client, but is helping the CSEU provide the parent with an additional service (emphasis supplied}.

Attorney Gallant then goes on to quote the Office of Temporary and Disability Assistance Administrative Directive 10-ADM-02 regarding Legal Services and Cost Recovery for Recipients of Child Support Services (hereinafter the "Directive") which clarifies that no attorney-client relationship exists between the litigant and the attorney providing the litigant with assistance at the request of the CSEU. The directive further states that the attorney appears on behalf of and represents the interests of the Child Support Agency to provide assistance for the Child Support Enforcement Unit (CSEU). Apparently, it is Attorney Gallant's position that since neither he nor Attorney Scaglione represented a litigant in this action, but only represented the CSEU there was no conflict of interest having two Assistant County Attorneys assisting opposing parties in the same litigation.

Although the Court agrees with Attorney Gallant regarding one point, the Court cannot agree with his final conclusions. The Court agrees that pursuant to Social Services Law §111-c(4) and 18 NYCRR 347.17(d)(2) when a litigant asks for legal assistance from the CSEU, the attorney provided by the CSEU to assist the litigant is supposed to appear and represent the interest of the CSEU, not the interest of the litigant.

However, whenever an attorney appears on behalf of CSEU, the attorney is required to clearly disclose his or her role to the litigant at each appropriate opportunity.

It is important that the CSEU attorney, when providing legal services, clearly disclose his or her role to the CSS recipient at each appropriate opportunity. Full disclosure can eliminate honest misunderstandings or the creation of an implied attorney-client relationship. The CSEU attorney should not by word or conduct imply that an attorney/client relationship exists. ...

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