A lawyer has an obligation under the Rules of Professional Conduct to comply with court orders to pay child support.  But what if you have an agreement with your spouse to pay less than the court order?  Or, to “pause” your obligations for a while?  Many lawyers are surprised to learn that because these “side agreements” do not automatically change the underlying court order, the lawyer is still subject to discipline for non-compliance with a court order. 

Colorado Rule of Professional Conduct 3.4(c) provides that a lawyer shall not knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists.  Knowing disobedience of a child support order is a violation of this rule.  There is no requirement that a lawyer willfully violate the order in order to violate Rule 3.4(c), as there might be in a contempt action, nor is there any authority holding that inability to pay is a defense to a disciplinary action. 

An ongoing failure to comply with a child support order can result in suspension from the practice of law.  See In re Green, 982 P.2d 838 (Colo. 1999); People v. Hanks, 967 P.2d 144 (Colo. 1998).  Therefore, a lawyer should try to address an inability to pay child support in the district court that issued the order—for example, by filing a motion to modify—before it becomes an ethics issue.

In addition to the discipline imposed for a violation of Rule 3.4(c), failure to pay court-ordered child support may result in the immediate suspension of a lawyer’s license while disciplinary proceedings are pending.  C.R.C.P. 251.8.5. 

All Colorado lawyers are required to certify that they are in compliance with any applicable child support orders on their annual attorney registration statement.  It is important to be truthful when answering this question, not least because the Office of Attorney Regulation Counsel often finds out an attorney is out of compliance with a child support order when someone—typically an ex-spouse, and sometimes a court or child support enforcement agency—complains.  Dishonesty on the attorney registration statement may aggravate the sanction ultimately imposed for noncompliance with the child support order. 

It is also important that attorneys personally complete their annual registration statement, rather than delegating the task to staff.  The certification page requires as much, and staff members who complete the form on an attorney’s behalf sometimes make mistakes that need to be addressed with the Office of Attorney Registration later. 

While it may seem intrusive for the Office of Attorney Regulation Counsel to be involved in an attorney’s personal domestic relations matter, the issue is whether the attorney is in continuing violation of a court order.  Attorneys are expected to comply with applicable rules and court orders to ensure the effective administration of justice.  By the same logic, hearing boards have disciplined attorneys for failure to pay court-ordered maintenance, not just child support.  See People v. McQuitty, 371 P.3d 279 (Colo. O.P.D.J. 2016).

In sum, knowing disobedience of a court order to pay child support is a violation of the Rules of Professional Conduct.  If a lawyer foresees a problem paying child support, the best practice is to address the issue immediately with the district court, rather than waiting until the lawyer is in violation of a court order.