Can a lawyer for the tortfeasor prepare the probate application to settle an unrepresented minor's injury claim?

Plain-English summary

When a personal-injury claim involving a minor settles, Ohio probate courts must approve the settlement, which requires filing an application to settle a minor's claim. The Board addresses whether the tortfeasor's lawyer may prepare that application and appear for approval when the minor and the minor's parents or guardians are unrepresented.

The opinion concludes the lawyer may do so, with disclosures. Under Prof.Cond.R. 4.3, a lawyer dealing on a client's behalf may not give legal advice to an unrepresented person, except the advice to secure counsel, citing Warren Cty. Bar Assn. v. Vardiman. The Board reasons that preparing the uncontested probate forms is not the giving of legal advice: the filing is a necessary step that benefits both sides by securing approval and discharging claims, and Comment [2] to Rule 4.3 expressly allows an opposing lawyer to prepare documents requiring an unrepresented person's signature. The lawyer may explain the purpose of the forms and the process to formalize the settlement.

On conflicts, the opinion finds no impermissible conflict under Prof.Cond.R. 1.7(a)(1): the tortfeasor's lawyer does not represent the minor, does not sign as the applicant's lawyer, and does not appear on the minor's behalf. To avoid any conflict or appearance of one, the lawyer should inform the minor and parents in writing that the lawyer is retained by the tortfeasor or its insurer and does not represent them, explain that they may retain independent counsel to review the filings, and make the same disclosures to the probate court at the hearing (citing Toledo Bar Assn. v. Rehkopf). The lawyer may state the client's view of the fairness of the settlement but should not speak for the minor or parents on that issue. This opinion withdraws Adv. Op. 1996-02.

In practice

Under this opinion, an Ohio lawyer for a tortfeasor or insurer may prepare and file the application to settle an unrepresented minor's claim and appear at the approval hearing. The opinion ties the permission to two limits: the lawyer must not cross from preparing forms into giving the minor or parents legal advice, and the lawyer must make clear, in writing and to the court, whom it represents and that the minor and parents may obtain independent counsel.

The opinion treats form preparation as outside the Rule 4.3 advice prohibition because it is an uncontested, court-required step, and it treats the engagement as creating no Rule 1.7 conflict because the lawyer does not represent the minor.

Common questions

Q: Can a tortfeasor's lawyer in Ohio prepare the minor's settlement application when the minor's family has no lawyer?

A: Yes. The opinion concludes the lawyer may prepare the application and appear for probate approval, with the required disclosures, because preparing the uncontested forms is not the giving of legal advice.

Q: Can that lawyer give the minor's parents advice about the settlement?

A: No. Per the opinion and Prof.Cond.R. 4.3, the only advice the lawyer may give an unrepresented person is to secure counsel; the lawyer may not give legal advice to the minor or parents.

Q: What disclosures must the lawyer make?

A: The opinion directs the lawyer to inform the minor and parents in writing that the lawyer represents the tortfeasor or insurer and not them, that the lawyer prepared the forms, and that they may retain independent counsel, and to repeat these disclosures to the probate court.

Q: Does preparing the application create a conflict of interest?

A: No. The opinion concludes there is no impermissible conflict under Prof.Cond.R. 1.7(a)(1) because the lawyer does not represent the minor, does not sign as the applicant's counsel, and does not appear on the minor's behalf.

Background and rules framework

The opinion interprets Ohio Prof.Cond.R. 4.3 (Model Rule 4.3; dealing with unrepresented persons), including Comment [2], and Prof.Cond.R. 1.7(a)(1) (Model Rule 1.7; concurrent conflicts). The probate-approval framework comes from R.C. 2111.18 and the Rules of Superintendence.

Citations and references

Rules of Professional Conduct:

• Model Rule 4.3 / Ohio Prof.Cond.R. 4.3 (unrepresented persons; advice limited to securing counsel)
• Model Rule 1.7 / Ohio Prof.Cond.R. 1.7(a)(1) (directly adverse conflict)

Statutes:

• R.C. 2111.18 (settlement of a ward's claim with probate-court approval)

Cases:

• Warren Cty. Bar Assn. v. Vardiman, 146 Ohio St.3d 23, 2016-Ohio-352, preparing filings for an unrepresented opposing party
• Disciplinary Counsel v. Jacobs, 109 Ohio St.3d 252, 2006-Ohio-2292, duty to avoid conflicts
• Toledo Bar Assn. v. Rehkopf, 154 Ohio St.3d 235, 2018-Ohio-3907, conflict based on appearance or actual conflict

See also

• NYC Bar Op. 2009-02: Ethical Duties Concerning Self-Represented Persons
• Ohio BPC Op. 2024-02: The No-Contact Rule for a Dual-Role Guardian ad Litem

Source

• Landing page: https://ohioadvop.org/advisory-opinion-index/
• Original PDF: https://www.ohioadvop.org/wp-content/uploads/2023/10/Adv.-Op.-2023-9-Final.pdf

Original opinion text

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

OPINION 2023-09
Issued October 6, 2023
Withdraws Adv. Op. 1996-02

Opposing Counsel's Preparation of Application to Settle a Minor's Claim

SYLLABUS: A lawyer representing a tortfeasor may prepare the application to settle a minor's claim in probate court when the plaintiff minor and the minor's parents/guardians are unrepresented by counsel. The lawyer should inform the minor and the minor's parents in writing that the lawyer is retained by the tortfeasor, that the lawyer does not represent the minor or parents/guardians, that the lawyer prepared the requisite court forms, and that the minor and parent/guardian have the right to secure their own independent counsel. The lawyer must make the same disclosures when appearing before the probate court. A lawyer representing a tortfeasor may not give legal advice to an unrepresented plaintiff minor or the minor's parents.

(References throughout the opinion to "tortfeasor's lawyer" also encompass situations where a lawyer is retained by the tortfeasor's insurer.)

APPLICABLE RULES: Prof.Cond.R. 1.7, 4.3

QUESTION PRESENTED: When a minor and the minor's parents/guardians are unrepresented by counsel during negotiation and settlement of the minor's personal injury claim, may the lawyer retained by the tortfeasor prepare the application to settle a minor's claim and appear before the probate court for final approval of the settlement?

ANALYSIS: When a personal injury claim involving a minor is settled, the guardian of the estate of the ward is permitted to settle all claims with the advice, approval, and consent of the probate court. R.C. 2111.18. The approval of the probate court requires the filing of an application to settle a minor's claim signed by the minor's parents/guardians. It is not uncommon, especially in situations where the minor and his or her parents/guardians are unrepresented in the matter, for the tortfeasor's lawyer to prepare the application. The lawyer's preparation of the necessary applications allows the minor and parents to avoid incurring legal expenses and expedites the resolution of the matter. The preparation of other court forms or filings may be required by the Rules of Superintendence or local rule, including but not limited to, an entry approving the application, waivers and consents, and a report and distribution of the minor's claim.

Dealing with Unrepresented Parties

Prof.Cond.R. 4.3 prohibits a lawyer, in dealing on behalf of a client, from giving legal advice to an unrepresented person whether or not the interests of the person are adverse to the lawyer's client. The only advice a lawyer is permitted to give to an unrepresented person is to secure counsel. Prof.Cond.R. 4.3; Warren Cty. Bar Assn. v. Vardiman, 146 Ohio St.3d 23, 2016-Ohio-352. Although a lawyer must be able to discuss the subject matter of the representation with an unrepresented person during the lawyer's representation of the opposing party, a lawyer should exercise caution in his or her dealings with the unrepresented party to avoid any misunderstanding about the lawyer's role in the matter. In some circumstances an unrepresented party may look to the lawyer for advice or incorrectly believe the lawyer is representing his or her interests. The lawyer must avoid creating the impression that he or she represents the unrepresented person's interests by disclosing to an unrepresented party, at the outset of the matter, the identity of the client the lawyer represents and the inability of the lawyer to give the unrepresented party legal advice.

Preparation of Probate Forms Does Not Constitute Legal Advice

While the interests of the tortfeasor and minor are adverse in the underlying matter, the filing of the application in probate court is an uncontested filing and is a necessary step to secure probate court approval of the settlement and discharge all past and future claims against the tortfeasor. It is in the interest of both parties to the negotiated settlement that the requisite application is filed and approved by the probate court.

In the Board's view, when the parties seek probate court approval of an application for a minor settlement, the preparation of the requisite court forms by the tortfeasor's counsel does not constitute the giving of legal advice to an unrepresented party. A lawyer may prepare the probate forms for the signature of minor's parents or guardians and appear at the subsequent hearing. Prof.Cond.R. 4.3, cmt.[2] (an opposing lawyer may prepare documents that require the unrepresented person's signature.) The preparation of the application facilitates settlement and final resolution of the matter, is governed by court rule and statute, and documents the underlying agreement that was the product of settlement negotiations. The lawyer may explain to the minor and the minor's parents/guardians the purpose of the forms being filed with the probate court and the underlying process and procedure to formalize the settlement. Id.

No Conflict of Interest

A conflict of interest involves the representation of a client that is directly adverse to another client. Prof.Cond.R. 1.7(a)(1). "Lawyers must avoid all actual and potential conflicts of interest so as not to dilute their independent loyalty to each client." Disciplinary Counsel v. Jacobs, 109 Ohio St.3d 252, 2006-Ohio-2292, ¶8. Here, the preparation of the forms by the tortfeasor's counsel is typically completed at the request of the insurer in order to discharge all past and future claims against the tortfeasor. The tortfeasor's lawyer is not the minor's representative, does not sign the probate forms as the applicant's lawyer, and does not make a formal appearance in court on behalf of the minor. Thus, the legal services provided by the lawyer in preparing the application does not constitute a legal representation of the minor nor give rise to an impermissible conflict of interest. See e.g, Vardiman at ¶3 (preparation and filing of shared parenting plan by lawyer when opposing party is unrepresented).

In order to remove any conflict of interest or appearance thereof, the lawyer should inform the minor and the minor's parents/guardians in writing that the lawyer is retained by the tortfeasor or the tortfeasor's insurer and does not represent the minor; explain that while the lawyer prepared the forms, that the minor/guardian may secure their own independent counsel to review the filings, and make these same disclosures to the probate court during the hearing. See Toledo Bar Assn. v. Rehkopf, 154 Ohio St.3d 235, 2018-Ohio-3907 (parties stipulated to a violation of Prof.Cond.R. 1.7(a)(1) based on an appearance or actual conflict of interest.) Lastly, while the tortfeasor's lawyer may represent to the probate court his or her client's view of the fairness of the terms underlying the underlying settlement, the lawyer should not speak on behalf of the minor or the minor's parents/guardians on the issue at hearing.