Must a lawyer appointed as a ward's next friend withdraw when the ward sues the lawyer for conspiracy?

Plain-English summary

The opinion addressed a lawyer whom a judge had appointed to act as next friend for a ward in a divorce case. The ward then retained counsel to sue the judge and the next friend for "conspiring and other actions," and the next friend asked whether the lawyer had to seek permission to withdraw.

The Committee noted that the ethics rules do not directly address whether a lawyer serving in a fiduciary capacity as next friend is disqualified when the ward sues the next friend. It explained that the appointing judge will ultimately decide whether withdrawal is allowed (cf. MRPC 1.16(c)), and that the judge may reason by analogy to the ethics rules. Drawing on RI-84, the Committee observed that a lawyer whose client files a grievance against the lawyer need not resign if a disinterested lawyer would reasonably conclude the representation would not be adversely affected.

Applying that reasoning, the Committee concluded that a ward should not be able to impair an appointed next friend's continued service merely by filing suit against the appointee. It pointed out that the judge had already determined a next friend was necessary, and the ward was apparently trying to challenge that decision through the conspiracy action. If the next friend were allowed to withdraw and a substitute appointed, the ward could simply add the successor to the conspiracy suit; allowing that manipulation would not serve the interests of the administration of justice (cf. MRPC 8.4(c)).

Currency note

This opinion was issued in 1993 and interprets the Michigan Rules of Professional Conduct as they then stood. The MRPC have since been amended, and 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 Treat this page as historical context, not current guidance.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: Does a ward's lawsuit against the appointed next friend automatically force the lawyer to withdraw?

A: No. The opinion concluded that a next friend is not per se required to withdraw merely because the ward files suit against the lawyer.

Q: Who decides whether the next friend may withdraw?

A: Per the opinion, the appointing judge ultimately decides whether withdrawal is allowed, and may analyze the question by analogy to the ethics rules (cf. MRPC 1.16(c)).

Q: Why did the Committee resist letting the suit force a withdrawal?

A: The opinion reasoned that a ward could otherwise manipulate the proceeding by suing each successive appointee, which would not serve the interests of the administration of justice.

Background and rules framework

The opinion interprets MRPC 8.4(c) / Model Rule 8.4 (conduct involving dishonesty, and the broader interest in the administration of justice) and MRPC 1.16(c) / Model Rule 1.16 (a lawyer must comply with a tribunal's rules on continuing or terminating a representation). The analysis draws on RI-84, which addressed whether a client's grievance against the lawyer requires the lawyer to withdraw.

Citations and references

Rules of Professional Conduct:

• MRPC 8.4(c) / Model Rule 8.4 (conduct involving dishonesty; administration of justice)
• MRPC 1.16(c) / Model Rule 1.16 (tribunal's authority over withdrawal)

Other opinions cited:

• RI-84: a lawyer whose client files a grievance need not resign if a disinterested lawyer would conclude the representation would not be adversely affected

See also

• Mich Ethics Op. JI-123: Hearing Officer Who Filed a Grievance Against a Lawyer
• Mich Ethics Op. RI-66: Representing a Current Opponent in Unrelated Matters

Source

• Landing page: https://www.michbar.org/opinions/ethics/numbered_opinions?OpinionID=1040&Type=6

Original opinion text

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

RI-170

September 17, 1993

SYLLABUS

A lawyer who has been appointed next friend to a ward is not per se required to withdraw as next friend when sued by the ward for conspiring with the appointing judge.

References: MRPC 8.4(c).

TEXT

A lawyer was appointed by a judge to act as the next friend for a ward in a divorce case. The ward subsequently retained counsel to file a lawsuit against the judge and the next friend for "conspiring and other actions." Is the next friend required to seek permission to withdraw?

Ethics rules do not directly address the question of whether a lawyer serving in a fiduciary capacity as next friend is disqualified when the ward brings suit against the next friend. Ultimately the judge appointing the next friend will need to be consulted regarding whether withdrawal will be allowed. Cf. MRPC 1.16(c). In considering whether withdrawal is appropriate or required, the judge may analyze the situation by analogizing to ethics rules.

A concern may validly be raised as to whether a ward, who has had a next friend appointed in a legal proceeding, may impair the continued representation by merely filing a lawsuit against the appointed next friend. In RI-84 we opined that a lawyer whose client files a grievance against the lawyer need not resign from the client's matter if a disinterested lawyer would reasonably conclude that the lawyer's representation of the client would not be adversely affected by the pending grievance. Whether the client's grievance required withdrawal depended upon the nature of the grievance and the nature and stage of the main matter, i.e., whether the client fully understood the judicial proceedings, whether the grievance concerned a fee dispute, whether the case was in litigation. In the present inquiry, a judge has already determined the necessity for appointing a next friend; the ward is apparently seeking to challenge that decision through the conspiracy action. If the judge were to allow the next friend to withdraw and appoint a substitute next friend for the divorce action, the ward may add the successor next friend to the conspiracy suit. The interests of the administration of justice would not be served by allowing such manipulation. Cf. MRPC 8.4(c).