H. B. 2867
(By Delegates Staton, Varner, McGraw, H. White and Keener)
[Introduced March 15, 2001; Referred to
the Committee on the Judiciary then Finance.]
A Bill to amend and reenact section twenty-one, article two,
chapter forty-eight-a of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, relating to
requiring that attorneys employed by the child support
enforcement division practice competently; providing for
sanctions and damages and abrogating any immunity heretofore
enjoyed for malpractice by such attorneys.
Be it enacted by the Legislature of West Virginia:
That section twenty-one, article two, chapter forty-eight-a of
the code of West Virginia, one thousand nine hundred thirty-one, as
amended, be amended and reenacted, to read as follows:
ARTICLE 2. WEST VIRGINIA SUPPORT ENFORCEMENT COMMISSION; CHILD
SUPPORT ENFORCEMENT DIVISION; ESTABLISHMENT AND
ORGANIZATION.
§48A-2-21. Attorneys representing state.
(a) Attorneys employed by the child support enforcement
division may represent this state or another state in an action
brought under the authority of federal law of this chapter.
(b) An attorney employed by the child support enforcement
division or employed by a person or agency or entity pursuant to a
contract with the child support enforcement division represents the
interest of the state or the division and not the interest of any
other party. The child support enforcement division shall, at the
time an application for child support services is made, inform the
applicant that any attorney who provides services for the child
support enforcement division is the attorney for the state of West
Virginia and that the attorney providing those services does not
provide legal representation to the applicant.
(c) An attorney employed by the child support enforcement
division or pursuant to a contract with the child support
enforcement division may not be appointed or act as a guardian ad
litem or attorney ad litem for a child or another party.
(d) An attorney employed by the child support enforcement
division shall practice competently in all respects, and such
attorney and the child support enforcement division are jointly
liable for sanctions, punitive damages and actual damages resulting
from the failure of such attorney or attorneys to practice
correctly and competently. To the extent that there has been any
immunity whatsoever conferred upon such attorneys in the past, whether the same be judicially created or judicially implied, such
immunity is hereby expressly overruled.
Note: The purpose of this Bill is to require competent and
correct practice by attorneys of the Child Support Enforcement
Division, and to abrogate any prior judicially created immunity
regarding malpractice by such attorneys.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.