Can one attorney represent both an injured child and the parents, who have their own emotional-distress claim, against the same physician?

Plain-English summary

A child was injured by a physician's apparent malpractice, and the parents had their own accruing claim against the physician for negligent infliction of emotional distress. The inquiry asked under what circumstances the same attorney may represent both the parents and the child. The opinion was offered as broader, general guidance on the issues raised in RPC 109, without contradicting that opinion's fact-specific advice.

The opinion concluded that, although the interests of parents and child are potentially in conflict, an attorney may represent the parents and through them the child in negotiating with the physician or his insurer before litigation. Once a lawsuit is commenced, the attorney should insist upon the appointment of an independent guardian ad litem for the child, and if it appears the interests will not necessarily conflict, the attorney may represent both with the intelligent consent of the parents and the child's independent guardian ad litem. Because the child's and parents' interests are inextricably linked in establishing the physician's negligence, an actual conflict is unlikely to arise before a settlement offer; should the defendant make a joint offer requiring the plaintiffs to divide the proceeds, the potential conflict becomes actual. Given the family ties and economic interests that are not necessarily antagonistic, that conflict would not automatically disqualify the attorney from continuing the joint representation, and in some instances the attorney may help the clients evaluate their respective claims and agree on an equitable division to present to the court for approval. Under no circumstances, however, may the attorney, while representing both, assume a role of advocacy for one as opposed to the other.

If it becomes apparent that the clients' conflicting interests cannot be mediated, the attorney will generally be required to withdraw from representing both, though the attorney may continue to represent one with the consent of the former client whose case he relinquishes, citing Rule 5.1(d).

Currency note

This opinion was issued in 1992, before the North Carolina State Bar's adoption of the 2003 revisions to the Rules of Professional Conduct. The opinion now carries an editor's note directing readers to RPC 251 for additional guidance. 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: Can one lawyer represent both the parents and the injured child?

A: Potentially, yes. The opinion held the lawyer may represent the parents and through them the child before suit, and both in litigation with an independent guardian ad litem and intelligent consent, if their interests will not necessarily conflict.

Q: When does the conflict become actual?

A: The opinion held the potential conflict becomes actual when the defendant makes a joint settlement offer requiring the plaintiffs to divide the proceeds.

Q: Does that actual conflict automatically disqualify the lawyer?

A: No. The opinion held that, given the family ties and not-necessarily-antagonistic economic interests, the conflict does not automatically disqualify the lawyer, who may even help the clients agree on an equitable division for court approval, but may never advocate for one over the other.

Q: What happens if the conflict cannot be resolved?

A: The opinion held the lawyer generally must withdraw from both, though he may continue to represent one with the consent of the former client whose case he gives up, under Rule 5.1(d).

Background and rules framework

The opinion applied North Carolina Rule 5.1, addressing concurrent conflicts and the duty to a former client when withdrawal from one of two joint clients becomes necessary (corresponding to Model Rules 1.7 and 1.9). The analysis turns on the alignment of the parents' and child's interests in proving liability and the point at which a settlement division makes the conflict actual, with an independent guardian ad litem protecting the child.

Citations and references

Rules of Professional Conduct:

• MR 1.7 (concurrent conflicts of interest)
• MR 1.9 (duties to former clients)
• North Carolina Rule 5.1 and Rule 5.1(d) (conflicts; adversity to a former client)

Other opinions cited:

• North Carolina RPC 109 (representation of parents and child; specific facts addressed more broadly here)

See also

• NC Ethics Op. RPC 170: joint representation of injured party and medical carrier
• NC Ethics Op. RPC 157: representing a client of questionable competence

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/rpc-123/

Original opinion text

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

Editor's Note: See RPC 251 for additional guidance.

Inquiry:

A child is injured due to the apparent malpractice of a physician. Incident to the injury there accrues to the parents of the child a claim against the physician for negligent infliction of emotional distress. Under what circumstances, if any, may the same attorney represent the interests of the parents and the child?

Opinion:

Note: This opinion is intended to address in a broader way the issues raised in RPC 109. It is offered for the general guidance of the bar and is not intended to contradict the advice given in response to the specific facts recited in RPC 109.

Although the interests of the parents and the child are potentially in conflict, an attorney may represent the parents and through them the child in negotiating with the physician or his insurer prior to the initiation of litigation. Once a lawsuit is commenced, the attorney should insist upon the appointment of an independent guardian ad litem for the child. If it appears that the interests of the parents and the child will not necessarily conflict, the attorney may undertake to represent both with the intelligent consent of the parents and the child's independent guardian ad litem. Since the interests of the child and the parents would be inextricably linked in the establishment of the physician's liability for negligence, it is unlikely that any actual conflict between the attorney's two clients would arise prior to the receipt of a settlement offer. Should the defendant make a joint offer requiring the plaintiffs to divide the proceeds, the potential conflict of interest would become actual. Given the fact that the attorney's clients are bound by family ties and would have economic interests which would not be necessarily antagonistic, the conflict of interest would not automatically disqualify the attorney from continuing the joint representation. In some instances it may also be appropriate for an attorney to attempt to assist his clients in evaluating their respective claims and in amicably agreeing to an equitable and appropriate division which could then be presented to the court for its approval. Under no circumstances may the attorney, while representing both clients, assume a role of advocacy for one as opposed to the other.

Should it become apparent to the attorney that his clients' conflicting interests cannot be mediated, the attorney will generally be required to withdraw from the representation of both. It is conceivable that the attorney may continue to represent one or the other with the consent of the former client whose case he relinquishes. Rule 5.1(d).