Can one law firm keep representing both the parents and an injured child after the parents are sued as third-party defendants for the child's injuries?

Plain-English summary

A law firm represented both parents and their child as plaintiffs in personal-injury litigation arising from the child's injuries, and the parents were then sued as third-party defendants on the theory that they were comparatively responsible for those injuries. The Committee was asked whether the firm could continue to represent both. It concluded that, because a conflict or potential conflict exists, the firm should seek the appointment of separate counsel to evaluate the child's interests and present the child's independent position on whether a true conflict exists.

The opinion reasoned that the parents' and child's interests may differ, since it may serve the parents to minimize their own liability while it serves the child to maximize it, creating divided loyalties. While differing interests would not automatically preclude joint representation (a lawyer may represent multiple clients if it is obvious each can be adequately represented and each consents after full disclosure under DR 5-105(C)), minors lack the capacity to evaluate that disclosure or to consent, and may feel pressure from their parents. The opinion drew on Alaska statutes providing for appointment of attorneys and guardians ad litem for minors, and on the principle that minors are entitled to an independent voice.

The opinion directed that the firm move for appointment of counsel for the minor as soon as the divergence becomes apparent, without selecting that attorney itself; the appointed attorney must discuss the matter independently with the minor, evaluate whether a true conflict exists, and obtain separate counsel if appropriate, asserting the minor's interests even against the parents. It stressed that ongoing separate counsel requires a real conflict contrary to the child's welfare, and that whether the firm may continue representing the parents depends on preserving the child's confidences, which it should disclose to the minor's attorney so the minor can take an informed position on complete withdrawal.

Currency note

This opinion was issued in 1991, before Alaska's adoption of the 2009 revisions to the Alaska Rules of Professional Conduct (and before Alaska adopted the Rules of Professional Conduct at all; it applies the former Code of Professional Responsibility). 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: Could one firm represent both the parents and the child once the parents were blamed for the injuries?

A: The opinion concluded a conflict or potential conflict exists and the firm should move for independent counsel to evaluate the minor's interests, rather than continuing joint representation unexamined.

Q: Why couldn't the parents just consent for the child?

A: The opinion reasoned that minors lack the capacity to evaluate the lawyer's disclosure or to give knowing consent, and may feel pressure from their parents, so they are entitled to an independent voice through appointed counsel.

Q: Did the firm get to pick the child's new lawyer?

A: No. The opinion directed the firm to move for appointment of counsel for the minor but not to select that attorney itself.

Q: Could the firm keep representing the parents?

A: The opinion concluded that depends on whether it can do so without breaching its duty to preserve the child's confidences, and it should disclose any such information to the minor's attorney so the minor can decide whether full withdrawal is required.

Background and rules framework

The opinion was decided under the former Alaska Code of Professional Responsibility, the analog to today's conflict rule (Model Rule 1.7) and the rule on clients with diminished capacity (Model Rule 1.14). It applied the Code's definition of "differing interests," Canon 5 and EC 5-16 (independent professional judgment and the client's chance to obtain other counsel), DR 5-105(C) (multiple-client representation with consent), and Canon 4 (confidences), against Alaska statutes on appointing counsel and guardians ad litem for minors.

Citations and references

Rules of Professional Conduct (former Code; cf. Model Rules):

• DR 5-105(C) (representing multiple clients with consent after full disclosure) (cf. Model Rule 1.7)
• EC 5-16; Canon 5 (independent professional judgment; opportunity to obtain other counsel)
• Canon 4 (preservation of confidences and secrets)

Statutes:

• AS 25.24.310; AS 47.10.050 (appointment of attorneys and guardians ad litem for minors)

Cases:

• White v. Osborne, 110 S.E.2d 449 (N.C. 1959)
• Veazey v. Veazey (Alaska 1977), on the role of a guardian ad litem

See also

• Alaska Ethics Op. 91-5: Withdrawing From Both Clients
• Alaska Ethics Op. 94-3: Representing a Client Under Disability
• Alaska Ethics Op. 2021-1: Multiple Criminal Defendants Conflict

Source

• Landing page: https://alaskabar.org/ethics-discipline/ethics-opinions/adopted-ethics-opinions-chronological/
• Original PDF: https://alaskabar.org/wp-content/uploads/91-3.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

ALASKA BAR ASSOCIATION
ETHICS OPINION NO. 91-3
Propriety of Representing Both Parents
and Child When Interests Differ
The Committee has been asked to consider whether a conflict of interest exists when a law firm represents both parents and child as plaintiffs in personal injury litigation arising from injuries to the child, and the parents are later sued as third-party defendants. The specific issue we are asked to address is whether the law firm may continue to represent both the parents and the child when the third-party complaint alleges that the parents are comparatively responsible for the child's injuries. The Committee has concluded that, because a conflict or potential for conflict exists, the law firm should seek the appointment of separate counsel to evaluate the child's interests. Appointed counsel should then present to the court the child's independent position on whether a true conflict exists and, if so, obtain independent counsel for child in ongoing litigation. "Differing interests" is defined in the Code of Professional Responsibility to include "every interest that will adversely affect either the judgment or the loyalty of a lawyer to a client, whether it be a conflicting, inconsistent, diverse, or other interest." In the case presented, the interests of the parents and child may differ because it may be in the parents' interest to minimize their own liability, yet may be in the child's interest to maximize it. An attorney attempting to represent both their respective interests potentially faces divided loyalties, in contravention of his duty to exercise independent professional judgment on behalf of each client. Professional Canon 5. Courts have consistently recognized that a parent and child may not share the same interests in litigation involving the child. See, e.g., White v. Osborne, 110 S.E.2d 449 (N.C. 1959); United States v. E.I. Du Pont De Nemours & Co., 13 F.R.D. 98 (N.D. Ill. 1952). In White, a father who had sued for his son's injuries waived the son's right to recover separately from the defendant and obtained a judgment that gave him priority over the son in recovering the damages award. On appeal, the court reversed the judgment because the son's interests had not been separately represented and the pecuniary interests of the father and son were in "sharp and irreconcilable conflict." White, supra, at

452. Similarly, in Du Pont, the court required separate representation of minor
     defendants in a complex anti-trust case in which their relatives were named as co-defendants. The court stated:

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The Court has no doubt that these defendants are estimable persons and, as relatives, would to the extent possible under the circumstances present the defense of the minors and protect their interests. Because of the nature and scope of this litigation, the court is concerned that conflict in interests will develop and that adequate defense and the best interests of the minor defendants require that they have independent representation. Du Pont, supra, at 105. Differing interests would not automatically preclude the law firm from representing both parents and child. For example, a lawyer may represent multiple clients if it is obvious that he can adequately represent the interests of each and if each consents to the representation after full disclosure of the possible effect of such representation on the exercise of the lawyer's independent professional judgment. DR 5-105(C). In those instances when a lawyer is justified in representing two or more clients who may have differing interests, it is nevertheless essential that each client be given the opportunity to evaluate his need for representation free of any potential conflict, and to obtain other counsel if he so desires. EC 5-16. When minor children are involved, problems arise in implementing the above protections. Minors do not have the same legal capacity as adults. Accordingly, they cannot be expected to adequately evaluate the full disclosure that is made by the attorney. In addition, minor children do not have the legal capacity to knowingly consent. They may also feel undue pressures from their parents or the parents' attorney. Recognizing the potential for child-parent conflict, Alaska statutes have provided for the appointment of attorneys for minors in legal proceedings involving a minor's welfare. AS 25.24.310(a); AS 47.10.050(a). When the court determines that representation of a minor's best interests, "as distinguished from his preferences," would promote a minor's welfare, a guardian ad litem may also be appointed. AS 25.24.310(c); AS 47.10.050(a). The Alaska Supreme Court has recognized that a guardian ad litem "is in every sense the child's attorney, with not only the power but the responsibility to represent his client zealously and to the best of his ability." Veazey v. Veazey, 487 P.2d 27, 387 (Alaska 1977). Whether the court appoints an attorney or a guardian ad litem, it is clear that minors are entitled to an independent voice in legal proceedings. Based on the above provisions, the Committee is of the opinion that the circumstances presented warrant appointment of an attorney to evaluate the minor child's interests. The law firm should ensure that the minor is afforded independent counsel as soon as it becomes apparent that the parents' and the minor's interests differ and that its loyalties to the minor might be compromised by its loyalties to the parents. The law firm should immediately move for appointment of counsel for the minor, but should not endeavor to select the attorney for the minor under the circumstances. See, e.g., Wagstaff v. Superior Court, Family Court Division, 535 P.2d 1220 (Alaska 1975). The appointed attorney must discuss the matter independently with the minor, evaluate whether a true conflict exists, present to the court 2

recommendations on the minor's behalf about whether separate counsel for the minor is necessary, and, if appropriate, obtain separate counsel for the minor. The committee wishes to stress that, to warrant ongoing separate counsel, the conflict of interest between the parents and child must be a real conflict of interest that would be contrary to the welfare of the child. Because there is no basis to distinguish adult and minor clients with regard to a lawyer's duty of zealous representation, any attorney appointed for the minor must assert the minor's interest and objectives even if these conflict with those of minor's parents. This case raises the final question of whether the law firm can continue to represent the parents, given its past representation of both the parents and child. Whether the law firm must withdraw from representing the parents will depend on the extent to which it can continue its representation without running afoul of its duty to preserve the confidences and secrets of the child pursuant to Professional Canon 4. The law firm should fully disclose to the minor's attorney of any potentially privileged information or confidential communications made during the course of its representation of the child to permit the minor to assert an informed position on whether a complete withdrawal should occur. Counsel with this potential problem may need to consider taking this action prior to the filing of the lawsuit. Approved by the Alaska Bar Association Ethics Committee on April 4, 1991. Adopted by the Board of Governors on June 5, 1991.

ID128:MANUL

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