Can one lawyer represent a minor facing criminal charges and the minor's parents in a related dependency case at the same time?

Plain-English summary

An attorney had undertaken to represent a minor in anticipation of criminal charges arising from the minor's alleged acts against younger siblings, and asked whether he could also represent the minor's parents in a dependency trial based on the parents' alleged failure to protect those siblings. The attorney represented that he believed the representation would not be adversely affected, that each client had consented after being advised of the advantages and risks of common representation, and that all shared the same goal: reuniting the family and acquitting the minor.

The Disciplinary Commission concluded that, on the stated facts, there did not appear to be a conflict of interest in representing both the minor in the criminal proceeding and the parents in the dependency trial. The opinion analyzed the question under Rule 1.7, which permits representation directly adverse to another client only where the lawyer reasonably believes the representation will not adversely affect the relationship with the other client and each client consents after consultation. Because the lawyer believed no adverse effect would result, both clients consented, and both sought the same goal so that neither had a directly adverse interest, that would in most instances suffice to overcome the Rule 1.7 conflict bar.

The opinion added a qualification specific to the minor client: because one client is a minor, there may be a question whether the minor can consent to common representation or determine that his interest is not adverse. The Commission concluded the better course was to petition the court to appoint a guardian ad litem for the limited purpose of determining whether the minor's interest could be adverse to the parents and whether he should consent, with that determination placed on the record or at least reduced to a writing signed by the guardian and the minor. If the guardian ad litem determined the minor's interest would not be adverse and consented on the minor's behalf, the attorney would not have a conflict precluding the joint representation.

Currency note

This opinion was issued in 1992, before the 2002 Ethics 2000 revisions to the ABA Model Rules of Professional Conduct and Alabama's subsequent amendments to its Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can one lawyer represent both a minor and the minor's parents in related proceedings?

A: Per the opinion, on the stated facts there was no apparent conflict where the lawyer reasonably believed the joint representation would not be adversely affected, each client consented, and all shared the same goal.

Q: Why did the opinion still require a guardian ad litem?

A: The opinion reasoned that, because one client is a minor, there is a question whether the minor can validly consent or assess whether his interest is adverse; a guardian ad litem should make that determination on the minor's behalf.

Q: How should the guardian ad litem's determination be documented?

A: The opinion said it would be preferable to place the determination on the record, or at a minimum reduce it to a written document signed by both the guardian and the minor client.

Background and rules framework

The opinion interprets Rule 1.7 (Model Rule 1.7, conflict of interest) of the Alabama Rules of Professional Conduct, applying the reasonable-belief-plus-consent standard to a joint representation in which one client is a minor and recommending a guardian ad litem to supply the minor's consent.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.7 / Ala. R. Prof. C. 1.7 (conflict of interest; consent after consultation)

See also

• AL Ethics Op. 1992-21: representing a new client adverse to a current client
• AL Ethics Op. 1991-08: a firm may not choose between conflicting present clients

Source

• Landing page: https://www.alabar.org/office-of-general-counsel/formal-opinions/1992-03/
• Original PDF: https://www.alabar.org/assets/2019/02/RO-92-03.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

ETHICS OPINION

RO-92-03

QUESTION:

"Under the Alabama Rules of Professional Conduct, may an attorney, who has undertaken the representation of a minor in anticipation of criminal charges arising out of alleged acts by the minor against the minor's younger siblings, also represent the minor's parents in a dependency trial that is based on the parents' alleged failure to protect the siblings from the alleged conduct, if the attorney believes that the representation will not be adversely affected, that each client has consented after being advised of the advantages and risks of the common representation, and that each client has the same goal, namely, to secure the reunification of the family and the acquittal of the minor?"

ANSWER:

Based on the facts as stated in your request, there does not appear to be any conflict of interest in your representing the minor child in the criminal proceeding and, at the same time, representing the minor's parents in the dependency trial. However, since one of the clients is a minor, a guardian ad litem should be appointed to represent the minor in determining whether his interest is adverse to his parents and whether he should consent to common representation.

DISCUSSION:

The question you present comes within the scope of Rule 1.7, Conflict of Interest, which provides in pertinent part as follows:

"Rule 1.7 * * *

(a) A lawyer shall not represent a client if the representation of that client will be directly adverse to another client, unless:

(1) the lawyer reasonably believes the representation will not adversely affect the relationship with the other client, and

(2) each client consents after consultation."

Your opinion request states that you do not believe your representation of one client will adversely affect your representation of the other, that both clients consent to common representation and that both clients seek the same goal and therefore neither has an interest which is directly adverse to the other. Assuming the facts to be as stated in your request, this would, in most instances, be sufficient to overcome the conflict of interest prohibited by Rule 1.7. However, in this instance one of your clients is a minor and there may be a question as to whether a minor can consent to common representation or make the determination that his interest is not adverse to another client. For this reason the Disciplinary Commission feels that the better course of action would be to petition the court to appoint a guardian ad litem to represent the minor for the limited purpose of making a determination as to whether the minor's interest could be adverse to that of his parents and whether he should consent to common representation. It would also be preferable to have the guardian ad litem's determination regarding these issues placed on the record or at a minimum reduced to a written document signed by both the guardian and the minor client. If the guardian ad litem determines that the minor's interest will not be adverse to his parents and consents on behalf of the minor to common representation then you would not have a conflict of interest which would preclude your representation of the minor child and the parents of the minor child.

LGK/vf

1/17/92