When a lawyer represents both a mother and her minor child in a paternity case, can the lawyer obey the mother's order to dismiss the appeal?

Plain-English summary

An attorney was retained by Mrs. A and her minor daughter B to pursue a paternity action. The case was tried, lost, appealed, briefed, and argued, with all fees and costs paid by Mr. and Mrs. A. During the case, a falling-out between Mrs. A and B led to a guardianship proceeding in which B's grandparents were appointed guardians; the attorney had no role in that proceeding. While the appeal was pending, Mrs. A instructed the attorney to dismiss it. The inquiry asked whether the attorney must follow that instruction.

The committee answered no. Although the deteriorated relationship between Mrs. A and B created a potential conflict, the lawyer's allegiance must remain with B, and the grant of guardianship to the grandparents probably rendered Mrs. A's instruction ineffective. Acceding to the instruction would violate Rule 1.2(f)(1) (a lawyer may not take action that the lawyer knows or should know would serve merely to harass or maliciously injure another), Rule 1.3 (diligence), and Rule 1.7(a)(1) and (2) (no representation directly adverse to another client absent reasonable belief and consent).

The committee reasoned that B is the real party in interest, and at this stage the attorney need only await the appellate decision; dismissing after argument would serve only to harass or injure B and be adverse to B's interests. Rule 1.7(a)(2) would require the consent of the grandparents on B's behalf, and Rule 1.16(a)(1) would seem to require the attorney to withdraw from representing Mrs. A. Mrs. A could be dismissed as a party to the appeal, with the guardians substituted. The committee noted the facts were unclear whether the "child" in the paternity action was B or B's child, but its conclusion would be the same either way, and that once the appellate decision issues the attorney is free to reassess the representation.

Currency note

This opinion was issued in 1991, before Illinois adopted the 2010 Illinois Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis, and the Illinois conflict and diligence rules have since been renumbered and revised. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule or requirement mentioned here.

Common questions

Q: Can a lawyer dismiss a paternity appeal because the mother who paid the fees says to?

A: No. The opinion concluded the lawyer may not, because the minor child is the real party in interest and dismissing after argument would harass or injure the child under Rules 1.2(f)(1), 1.3, and 1.7(a).

Q: Whose interests control when the mother and the minor child disagree?

A: The opinion concluded the lawyer's allegiance must remain with the child, and the grandparents' appointment as guardians likely rendered the mother's instruction ineffective.

Q: Does the lawyer have to withdraw from representing the mother?

A: The opinion concluded Rule 1.16(a)(1) would seem to require the lawyer to withdraw from representing the mother, who could then be dismissed as a party with the guardians substituted.

Background and rules framework

The opinion applied Rule 1.2(f)(1) (no action serving merely to harass or maliciously injure), Rule 1.3 (diligence), Rule 1.7(a) (concurrent conflicts and consent), and Rule 1.16(a)(1) (mandatory withdrawal) to a lawyer jointly representing a mother and her minor child whose interests diverged (Model Rules 1.2, 1.3, 1.7, 1.16).

Citations and references

Rules of Professional Conduct:

• Model Rule 1.7 (conflicts of interest) / Illinois Rule 1.7(a)
• Model Rule 1.2 (scope; no harassing action) / Illinois Rule 1.2(f)(1)
• Model Rule 1.3 (diligence) / Illinois Rule 1.3
• Model Rule 1.16 (declining or terminating representation) / Illinois Rule 1.16(a)(1)

See also

• ISBA Ethics Op. 90-24: Married Lawyers on Differing Sides
• ISBA Ethics Op. 91-05: Estate Work vs. a Former Creditor Client
• ISBA Ethics Op. 90-26: Fee Entitlement After a Conflict Withdrawal

Source

• Landing page: https://www.isba.org/ethics/opinions/9108