If parents who hired me for their injured child's injury claim tell me to limit the recovery, can I keep representing both?

Plain-English summary

Parents retained a lawyer to pursue a personal injury claim for their twelve-year-old child, severely injured on a family friend's property, and the lawyer filed claims for the child and Medical Expense Act counts for the parents. The defendant carried $100,000 in insurance but had assets well beyond that, and a finding of liability would likely exceed the policy. Because of the families' relationship, the parents instructed the lawyer to seek only the insurance limits. The question was whether this created a conflict, whether it was waivable, and when a lawyer must counsel clients about conflicts.

The opinion concluded that, under Opinion No. 90-26, a lawyer must determine the existence of possible conflicts at the outset, and that obvious "red flags" include multiple clients, third-party payment, and a client's minority, all present here. It concluded the situation is governed by Rule 1.7 plus Rule 2.1 (independent professional judgment and candid advice) and Rule 5.4(c) (a lawyer may not let a person who recommends, employs, or pays the lawyer direct the lawyer's professional judgment in serving another).

Applying Rule 1.7(b), the opinion concluded that following the parents' instruction to cap the recovery would prevent the lawyer from exercising independent professional judgment for the child and would limit the child's potential award, in direct conflict with the child's interest. Because the lawyer believed the parents' condition would adversely affect the representation, the first prong of Rule 1.7(b) was not met, so the second prong (consent) did not come into play and the conflict was not waivable. The opinion concluded the lawyer must explain to the parents (per Rule 1.7(c)) that their restriction impairs his independent judgment and makes joint representation impermissible; if the parents do not rescind it, the lawyer's options include withdrawing from one or both clients or seeking a guardian ad litem. Given the child's age, the opinion concluded seeking a guardian ad litem under Rule 1.14(b) would be prudent.

Currency note

This opinion was issued in 1996, before Illinois adopted the 2010 Illinois Rules of Professional Conduct. The ISBA Board of Governors affirmed the opinion in January 2010 as generally consistent with the 2010 Rules (referring to Rules 1.7, 1.14, 2.1, and 5.4(c)), while noting the specific standards referenced may differ from the 2010 Rules. Subsequent rule amendments or later opinions may have changed the analysis. Verify against current rules before relying on any specific rule or requirement mentioned here.

Common questions

Q: Can a lawyer follow the parents' instruction to limit an injured child's recovery?

A: The opinion concluded no. Doing so would stop the lawyer from exercising independent professional judgment for the child and would limit the child's award, conflicting with the child's interest.

Q: Is this conflict waivable by consent?

A: The opinion concluded it is not. Because the lawyer believed the parents' restriction would adversely affect the representation, the first prong of Rule 1.7(b) failed, so consent could not cure it.

Q: Does paying the lawyer let the parents direct the strategy for the child?

A: The opinion concluded no. Under Rule 5.4(c), a lawyer may not let a person who employs or pays the lawyer to serve another direct or regulate the lawyer's professional judgment.

Q: What should the lawyer do if the parents will not rescind the restriction?

A: The opinion concluded the lawyer must explain that joint representation is impermissible, and then withdraw from one or both clients or seek a guardian ad litem; given the child's age, seeking a guardian ad litem under Rule 1.14(b) would be prudent.

Background and rules framework

The opinion interpreted Rule 1.7 (concurrent conflicts and the conjunctive requirements of Rule 1.7(b); the explanation duty in Rule 1.7(c); Model Rule 1.7), Rule 2.1 (independent professional judgment; Model Rule 2.1), Rule 5.4(c) (barring a third-party payer from directing the lawyer's judgment; Model Rule 5.4), and Rule 1.14(b) (protective action, including a guardian ad litem, for a client who cannot adequately act in his own interest; Model Rule 1.14).

Citations and references

Rules of Professional Conduct:

• Model Rule 1.7 (conflict of interest: current clients) / Illinois Rule 1.7(b), (c)
• Model Rule 1.14 (client with diminished capacity) / Illinois Rule 1.14(b)
• Model Rule 2.1 (advisor; independent professional judgment) / Illinois Rule 2.1
• Model Rule 5.4 (professional independence) / Illinois Rule 5.4(c)

Other opinions cited:

• ISBA Advisory Opinions Nos. 89-17, 90-14, 90-26, and 91-08

See also

• ISBA Ethics Op. 96-05: Conflicts of Interest in Estate Matters
• ISBA Ethics Op. 09-02: Concurrent Representation of Physician and Co-Defendant Hospital

Source

• Landing page: https://www.isba.org/ethics/opinions/9606