A lawyer represents both a mother and her injured child; the mother (also the child's guardian ad litem) bars discovery of the at-fault grandmother's assets. What must the lawyer do?

Plain-English summary

A lawyer was retained to represent a minor child injured in an automobile accident. The mother served as the child's guardian ad litem and had also retained the lawyer individually on her own claim for the child's medical bills and expenses. The at-fault driver was the grandmother (the mother's biological mother). After filing suit, the lawyer learned the grandmother's insurance coverage was limited and, through a conversation with the mother (confirmed by a public-records search), that the grandmother might have assets. The mother expressly forbade the lawyer from conducting discovery of the grandmother's assets, and the lawyer feared the mother's stance was self-serving (a possible inheritance) rather than in the child's best interest. The lawyer asked whether he could obey the instruction, whether it mattered that he learned of the assets in a privileged communication, and how to extricate himself without prejudicing his clients.

The committee concluded the dual representation creates a potential conflict. Under Rule 1.2, if the lawyer represented only the mother, he would have to comply with her instruction limiting discovery or withdraw; but he also represents the minor child, whose interests may be materially affected by failing to investigate available assets. If the lawyer cannot resolve the apparent conflict between the mother's instruction and the child's best interest, Rule 1.7 is implicated, because the representation of one client may be materially limited by responsibilities to the other. Although some conflicts may be waived by each affected client's informed consent confirmed in writing under Rule 1.7(b)(4), consent is not possible here: the minor cannot legally consent, and the lawyer's concern that the mother may have an interest adverse to the child precludes accepting the mother's consent on the child's behalf.

On the privileged-communication question, the committee concluded it is not significant to the inquiry that the lawyer learned of the assets in a privileged attorney-client communication. On extrication, the committee concluded that when a direct conflict arises Rule 1.16 requires the lawyer to withdraw, doing so in the least prejudicial manner and, because litigation is pending, obtaining court approval under Rule 1.16(c). It also concluded the lawyer may need to seek appointment of a new guardian ad litem under Rule 1.14(b), noting Comment 4 to Rule 1.14: where a lawyer represents the guardian as distinct from the ward and is aware the guardian is acting adversely to the ward's interest, the lawyer may have an obligation to prevent or rectify the guardian's misconduct (see Rule 1.2(d)). The committee suggested further conversation with the mother might clarify whether her course is actually contrary to the child's interest.

In practice

Under this opinion, on the facts presented, a lawyer who represents both the mother and the injured minor cannot simply obey the mother's instruction to forgo discovery of the at-fault grandmother's assets, because doing so may materially limit the child's representation and create a Rule 1.7 conflict. The committee held that because the minor cannot consent and the mother's interest may be adverse, the conflict cannot be cured by consent, so the lawyer must withdraw under Rule 1.16 (with court approval, given pending litigation) in the least prejudicial way, and may need to seek appointment of a new guardian ad litem under Rule 1.14. It found the privileged source of the asset information immaterial.

Common questions

Q: Can a lawyer obey a guardian ad litem mother's instruction not to pursue the at-fault party's assets?

A: Not where the lawyer also represents the injured child. The committee concluded that obeying it may materially limit the child's representation, creating a Rule 1.7 conflict the lawyer cannot ignore.

Q: Can the mother consent to the conflict on the child's behalf?

A: No. The committee concluded the minor cannot legally consent, and because the mother may have an interest adverse to the child, the lawyer cannot accept the mother's consent for the child, so the conflict is not waivable.

Q: Does it matter that the lawyer learned of the assets in a privileged communication?

A: No. The committee concluded it is not significant to the inquiry that the lawyer learned of the grandmother's assets in a privileged attorney-client communication.

Q: How should the lawyer get out of the representation?

A: The committee concluded the lawyer must withdraw under Rule 1.16 in the least prejudicial manner, obtaining court approval because litigation is pending, and may need to seek a new guardian ad litem under Rule 1.14.

Background and rules framework

The opinion applies South Carolina Rule 1.7 (conflict of interest; current clients), Rule 1.2 (scope and abiding by the client's decisions), Rule 1.16 (declining or terminating representation), and Rule 1.14 (client with diminished capacity; minors), with Comment 4 to Rule 1.14. These correspond to the like-numbered Model Rules. The analysis turns on the non-waivability of the conflict where a minor cannot consent and the co-client's interest may be adverse.

Citations and references

Rules of Professional Conduct:

• MR 1.7 / SC Rule 1.7(a), (b) and Comments 4, 8 (concurrent conflict; withdrawal when a conflict arises)
• MR 1.2 / SC Rule 1.2 (abiding by the client's decisions on objectives)
• MR 1.16 / SC Rule 1.16(a)(1), (c), (d) and Comment 2 (mandatory withdrawal; court approval; least prejudicial)
• MR 1.14 / SC Rule 1.14(b) and Comment 4 (protective action; guardian acting adversely to the ward)

Cases:

• In re Brown, 317 S.C. 25, 450 S.E.2d 586 (1994), lawyer disciplined for failing to withdraw once a conflict arose

See also

• SC Bar Ethics Op. 06-06: Protective action for a client with dementia
• SC Bar Ethics Op. 05-22: A conflict in signing the Army's cost-recovery agreement
• SC Bar Ethics Op. 04-04: Two divorce clients who shared evidence

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-06-10/

Original opinion text

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

UPON THE REQUEST OF A MEMBER OF THE SOUTH CAROLINA BAR, THE ETHICS ADVISORY COMMITTEE HAS RENDERED THIS OPINION ON THE ETHICAL PROPRIETY OF THE INQUIRER’S CONTEMPLATED CONDUCT. THIS COMMITTEE HAS NO DISCIPLINARY AUTHORITY. LAWYER DISCIPLINE IS ADMINISTERED SOLELY BY THE SOUTH CAROLINA SUPREME COURT THROUGH ITS COMMISSION ON LAWYER CONDUCT.

Ethics Advisory Opinion 06-10

SC Rules of Professional Conduct 1.2, 1.7, 1.14, 1.16

Facts:
Lawyer has been retained to represent interests of Minor Child who was injured in an automobile accident. Mother is Guardian ad Litem for Minor Child and has also retained Lawyer individually on her claim for medical bills and expenses of the injured minor. Grandmother (Mother’s biological mother) is the at-fault driver.

At the time Lawyer filed suit against Grandmother, he believed her insurance coverage was sufficient to cover the claims of both Minor Child and Mother. He has since learned that coverage is limited. Initially, it appeared that Grandmother had no assets; however, Lawyer learned through a conversation with Mother that Grandmother may actually have some assets. Lawyer confirmed this by public records search. Mother has expressly forbidden Lawyer from conducting any discovery as to Grandmother’s assets. Lawyer is concerned that Mother’s stance on discovery arises from a self-serving interest (i.e., a possible inheritance) rather than Minor Child’s best interest.

Questions:
Can Lawyer ethically obey the instruction of Mother/Guardian ad Litem to not conduct discovery as to Grandmother’s assets?
Is there any significance to the fact that Lawyer learned of Grandmother’s assets in a privileged attorney-client communication?
How does Lawyer extricate himself from this situation without prejudicing the best interests of his clients?

Summary of Opinion:
Because of the dual representation, Mother’s instructions not to conduct any discovery as to Grandmother’s assets may present a conflict of interest for Lawyer.
It is not significant to the inquiry that Lawyer learned of Grandmother’s assets in a privileged attorney-client communication.
Under Rules 1.7 and 1.16, Lawyer should withdraw from representation of Mother and Minor Child. Lawyer may also need to seek the appointment of a new guardian ad litem for the minor under Rule 1.14.

Opinion:
South Carolina Rules of Professional Conduct Rule 1.7 governs conflicts of interest between current clients of a lawyer. SCRPC Rule 1.7 (a) bans this dual capacity “if the representation of one client will be directly adverse to another client” or if “there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client . . . .” SCRPC Rule 1.7 (a). Lawyer may proceed with representation despite this conflict only if:

the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;
the representation is not prohibited by law;
the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and
each affected client gives informed consent, confirmed in writing.

SCRPC Rule 1.7 (b).

The Comments to Rule 1.7 further clarify the scope of the rule itself. “If a conflict arises after representation has been undertaken, the lawyer ordinarily must withdraw from the representation, unless the lawyer has obtained the informed consent of the client under the conditions of paragraph (b).” Comment 4, SCRPC Rule 1.7. See also SCRPC Rule 1.16. Comment 8 to Rule 1.7 further explains that a conflict would exist “if there is a significant risk that a lawyer’s ability to consider, recommend or carry out an appropriate course of action for the client will be materially limited as a result of the lawyer’s other responsibilities or interests.”

Rule 1.16(a)(1) provides that a lawyer must terminate or decline to represent a client if the “representation will result in a violation of the Rules of Professional Conduct or other law.” SCRPC Rule 1.16 (a)(1). Comment 2 to Rule 1.16 further clarifies that a “lawyer ordinarily must decline or withdraw from representation if the client demands that the lawyer engage in conduct that is illegal or violates the Rules of Professional Conduct or other law.” Comment 2, SCRPC Rule 1.16 (emphasis added). South Carolina disciplinary cases have enforced this necessity to withdraw to prevent a violation of ethical rules. See Annotations to Rule 1.16 in Annotated South Carolina Rules of Professional Conduct 2005 Edition, Wilcox and Crystal, (2005), specifically referencing In re Brown, 317 S.C. 25, 450 S.E.2d 586 (1994)(lawyer was disciplined for failing to withdraw once a conflict arose). In addition, Rule 1.2 underscores the lawyer’s duty to abide by the client’s wishes as concerns the goal of the representation. SCPRC Rule 1.2.

In the case at hand, Lawyer represents both Mother and Minor Child. Mother has “demanded” that Lawyer refrain from conducting any discovery as to Grandmother’s assets, a course of conduct he believes to be contrary to Minor Child’s best interest. Under Rule 1.2, if Lawyer were only representing Mother, Lawyer would be required to comply with Mother’s wishes in limiting the extent of the discovery and recovery or withdraw. However, Lawyer also represents Minor Child, whose interests may be materially affected by the failure to investigate all possible assets available to compensate her for her injuries. The Committee does not know the extent of conversation that has taken place between Lawyer and Mother to justify Lawyer’s concerns. Further conversation with Mother may be advisable to determine whether such a course of conduct is in Minor Child’s best interest or not. If Lawyer cannot resolve this apparent conflict between Mother’s instructions and Minor Child’s best interest, as both Mother and Minor Child are Lawyer’s clients, the situation would present a conflict of interest under Rule 1.7. Although some conflicts may be waived by “each affected client [giving] informed consent, confirmed in writing” (Rule 1.7(b)(4)) the required consent is not possible in the present case. Minor Child cannot legally provide informed consent, and Lawyer’s concern that Mother may have an interest adverse to Minor Child’s would preclude Lawyer from accepting Mother’s consent on behalf of Minor Child.

When a direct conflict of interest arises, Rule 1.16 dictates that the lawyer must withdraw from representation and must do so in the least prejudicial manner for the sake of his clients. SCRPC Rule 1.16 (a), (d). In addition, because litigation has been filed, Lawyer will have to obtain court approval to withdraw from the representation. Rule 1.16 (c).

Lawyer may also need to seek appointment of another guardian ad litem to protect Minor Child’s best interest. SCRPC Rule 1.14(b). Comment 4 of Rule 1.14 is instructive here: “If a legal representative has already been appointed for or by the client, the lawyer should ordinarily look to the representative for decisions on behalf of the client. In matters involving a minor, whether the lawyer should look to the parents as natural guardians may depend on the type of proceeding or matter in which the lawyer is representing the minor. If the lawyer represents the guardian as distinct from the ward, and is aware that the guardian is acting adversely to the ward's interest, the lawyer may have an obligation to prevent or rectify the guardian's misconduct. See Rule 1.2(d).”