When a minor's parent refuses to pursue the minor's injury claim to protect the family's insurance rates, may the lawyer seek an independent guardian ad litem for the minor?

Plain-English summary

A lawyer represented a seventeen-year-old injured in a car accident while riding with her mother, where the mother, the oncoming driver, or both might have been negligent. The lawyer had declined to represent both mother and daughter because of a conflict and represented only the daughter, with the father signing the fee agreement as guardian. After investigation suggested the mother was most likely negligent, the father told the lawyer he no longer wanted to pursue the daughter's claim because a judgment against the mother would raise the family's insurance rates. The lawyer wrote the father explaining that the rates would rise anyway if the other driver made a claim, so pursuing the daughter's claim would not add to that effect, and that the father had a moral and ethical duty to proceed. The lawyer believed the parents were protecting their own interests at the daughter's expense. The first question was whether the lawyer's ethical duty was satisfied once he so advised the father.

The opinion concluded that it was. It added that on these particular facts, where the father's only stated reason for not pursuing the daughter's claim was protecting the family's insurance rates and no other concern or contingency was indicated, the lawyer may seek appointment of an independent guardian ad litem to represent the daughter's interests, consistent with the lawyer's primary duty to represent the daughter as the real party in interest, citing CPR 15. On the second question, the opinion concluded that the lawyer may seek appointment of an independent guardian ad litem and proceed with filing suit after that guardian has reviewed the case and agreed the lawyer should proceed.

Currency note

This opinion was issued in 1994, before the North Carolina State Bar's adoption of the 2003 revisions to the Rules of Professional Conduct. 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 Treat this page as historical context, not current guidance.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: Is the lawyer's duty met once he advises the parent of the duty to pursue the minor's claim?

A: Yes. The opinion concluded that the lawyer's ethical duty was satisfied after he advised the father that the father had an ethical and moral duty to proceed.

Q: Can the lawyer seek an independent guardian ad litem for the minor?

A: Yes, on these facts. The opinion held that where the parent's only stated reason for not pursuing the claim was protecting the family's insurance rates, the lawyer may seek an independent guardian ad litem to represent the minor, consistent with his duty to the minor as the real party in interest.

Q: Can the lawyer then file suit?

A: Yes. The opinion concluded the lawyer may seek the independent guardian ad litem and file suit after that guardian reviews the case and agrees the lawyer should proceed.

Background and rules framework

The opinion addressed the lawyer's duty to a minor client whose parent-guardian was acting against the minor's interest, without citing a numbered Rule of Professional Conduct. It grounded the lawyer's authority to seek an independent guardian ad litem in the lawyer's primary duty to represent the minor as the real party in interest, citing the earlier opinion CPR 15.

Citations and references

Rules of Professional Conduct:

• The opinion did not cite a numbered rule; it relied on the lawyer's duty to the minor as the real party in interest.

Other opinions cited:

• North Carolina CPR 15 (duty to the real party in interest)

See also

• NC Ethics Op. 2004 Formal Op. 11: lawyer appointed as guardian ad litem
• NC Ethics Op. 2012 Formal Op. 9: roles of a lawyer appointed to represent a child
• NC Ethics Op. 2006 Formal Op. 9: pursuing a frivolous claim at the direction of a GAL

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/rpc-163/

Original opinion text

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

Editor's Note: This opinion was originally published as RPC 163 (Revised).

Inquiry #1:

Attorney X represents A, a seventeen-year old high school student who was injured in a motor vehicle accident at the time that she was riding in an automobile being driven by her mother, M. There is a question as to whether the oncoming vehicle was negligent, whether M was negligent, or both. A's father, F, and M originally asked Attorney X to represent both M and A. Attorney X explained that there appeared to be a conflict of interest between M and A and that Attorney X would be willing to represent only A. M and F agreed. Attorney X entered into a fee agreement with F signing as guardian for A. No lawsuit has been filed at this time. After investigating the motor vehicle accident, Attorney X concluded that M was most likely negligent, although the driver/owner of the oncoming vehicle may also have been negligent. F left a telephone message for Attorney X indicating that he was no longer interested in pursuing A's claims since it appeared likely that M would be the major defendant and if a judgment was entered against her, it would raise F and M's automobile insurance rates. F did not respond to Attorney X's request that he come in to discuss the matter in person. Attorney X wrote to F explaining that M and F's insurance rates would go up if the driver of the other car made a claim against M and, therefore, making a claim on A's behalf would have no additional adverse effect on the family's insurance rates. In this letter, Attorney X told F that he believed that F and M had a moral as well as an ethical duty to A to proceed. Attorney X believes that A's parents are not acting in A's best interests. They appear to be protecting their own interests to the exclusion of A's interests. Having advised F that Attorney X believes that he has an ethical and moral duty to proceed, is Attorney X's ethical duty satisfied?

Opinion #1:

Yes. However, on these particular facts, where F's only stated reason for failing to pursue his daughter's claim is the protection of the family's automobile insurance rates and no other concerns or contingencies have been indicated by F, it would be permissible for Attorney X to seek the appointment of an independent guardian ad litem to represent A's interests. This would be consistent with Attorney X's primary duty to represent the interest of A, who is the real party in interest. See CPR 15.

Inquiry #2:

May Attorney X seek the appointment of an independent guardian ad litem and proceed with filing suit after the independent guardian ad litem has reviewed the case and agrees that Attorney X should proceed?

Opinion #2:

Yes. See Opinion #1 above.