May a lawyer act as next friend for a hospitalized ward in restoring her civil rights and then serve as her counsel in a later proceeding?

Plain-English summary

A member asked about a female client committed to the Florida State Hospital at Chattahoochee, whose civil rights he proposed to reestablish in the County Judge's Court. In the absence of a near relative or friend to act as "next friend," he asked whether he could serve in that role and later represent her in legal proceedings to establish a common law marriage.

The committee found no objection to the member or his associate attorney acting as next friend under the circumstances stated, and then later acting as counsel in the proceedings to establish a common law marriage. It added that it believed it would be better if he could find another attorney to act as next friend.

Currency note

This opinion was issued in 1961, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. The opinion applied former Canon 6 of the Canons of Professional Ethics; conflicts of interest and a lawyer's responsibilities to a client with diminished capacity are now addressed by Rules 4-1.7 and 4-1.14 of the Rules Regulating The Florida Bar (Model Rules 1.7 and 1.14). Treat this page as historical context, not current guidance. Verify against the current rules before relying on any specific requirement mentioned here.

Common questions

Q: Could the same lawyer be both next friend and later counsel for the ward?

A: Yes. The committee found no impropriety in the lawyer (or his associate) acting as next friend in the civil-rights proceeding and then later as counsel in the common law marriage proceeding.

Q: Did the committee prefer another arrangement?

A: Yes. It suggested it would be better if the lawyer could find another attorney to act as next friend.

Background and rules framework

The opinion applied former Canon 6 of the Canons of Professional Ethics. Conflicts of interest and a lawyer's responsibilities toward a client with diminished capacity are now addressed by Rules 4-1.7 and 4-1.14 of the Rules Regulating The Florida Bar (Model Rules 1.7 and 1.14). The committee's analysis turned on the absence of any near relative or friend to serve as next friend for the hospitalized ward.

Citations and references

Rules of Professional Conduct:

• Canon 6 [Canons of Professional Ethics; see current Rules 4-1.7, 4-1.14]

See also

• FL Bar Ethics Op. 63-11: Representing a Client in Restoration of Competency
• FL Bar Ethics Op. 62-9: Representing a New Client Against a Former Client's Matter

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-60-23/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-60-23-1.pdf

Original opinion text

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

FLORIDA BAR ETHICS OPINION
OPINION 60-23
January 10, 1961
Advisory ethics opinions are not binding.
There is no impropriety when a lawyer who proposes to reestablish the civil rights of a female ward of a state mental hospital acts as her next friend in such proceedings with the intention of subsequently acting as her counsel in proceedings to establish a common law marriage.
Canon: 6
Chairman Holcomb stated the opinion of the committee:
A member of The Florida Bar submits a question relative to a female client committed to the Florida State Hospital at Chattahoochee and whose civil rights he proposes to re-establish in the County Judge's Court. He questions whether, in the absence of a near relative or friend to act as "next friend," he may do so and later represent her in legal proceedings to establish a common law marriage.
We find no objection to him or his associate attorney acting as "next friend" under the circumstances stated, and then later acting as counsel in the proceedings to establish a common law marriage. We believe, however, it would be better if he could find another attorney to act as "next friend."