Can one lawyer represent both a minor's legal guardian and the minor's father in a single personal-injury suit when their recoveries may conflict?

Plain-English summary

A client employed a lawyer to sue for personal injuries to his minor son. The lawyer filed suit in district court in the father's name, both individually and as next friend of the minor, seeking a substantial recovery for the minor and a lesser sum for the father's loss of the son's services. The lawyer then applied in county court for guardianship of the minor's estate, and the court appointed a bank as legal guardian, to be substituted for the next friend as plaintiff on the minor's behalf, with the father continuing as a plaintiff in his own behalf. The guardian asked the lawyer to elect to represent either the father or the guardian, but not both. The question was whether representing both, without the consent of both, would be unethical.

The Committee held that, under Canon 6, it is unethical to represent conflicting interests except by the express consent of all concerned after full disclosure, and that a lawyer represents conflicting interests when, on behalf of one client, it becomes his duty to contend for what his duty to another client requires him to oppose. On these facts, the Committee said it could not say the lawyer's duty to the father would never require him to contend for what his duty to the minor or the guardian would require him to oppose. It therefore concluded that representing both without the consent of both would be unethical. The Committee noted that several related questions, such as whether the guardian had an absolute right to be substituted for the next friend or to discharge the lawyer, were questions of law outside its functions. The ruling was 9-0.

Currency note

This opinion was issued in 1966, under the former Texas Canons of Ethics, which the Texas Disciplinary Rules of Professional Conduct replaced effective January 1, 1990. 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 Treat this page as historical context, not current guidance.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 a minor's guardian and the minor's father in the same injury suit?

A: Not without the express consent of both. The Committee held that their interests may conflict, so representing both without consent would violate Canon 6.

Q: Why are the father's and the minor's interests in conflict?

A: The suit sought a substantial recovery for the minor and a separate, lesser sum for the father's loss of the son's services. The Committee said it could not say the lawyer's duty to the father would never require contending for what his duty to the minor would require him to oppose.

Q: Did the Committee decide whether the guardian could replace the lawyer or be substituted as plaintiff?

A: No. It said those were questions of law outside the committee's functions.

Background and rules framework

The opinion interprets former Texas Canon 6, which made it unethical to represent conflicting interests except by the express consent of all concerned after full disclosure. The modern analog is ABA Model Rule 1.7 (concurrent conflicts of interest).

Citations and references

Rules of Professional Conduct:

• MR 1.7 (concurrent conflicts of interest), as the modern analog
• Texas Canon 6 (former canon)

See also

• TX Ethics Op. 317: Conflicts From the Same Collision and a Former Associate Switching Sides
• TX Ethics Op. 326: Defending a Damage Suit After a Workers' Comp Defense in the Same Accident
• TX Ethics Op. 359: A Firm Representing a Savings and Loan and Its Title Insurer

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-314/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_314.pdf

Original opinion text

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

QUESTION PRESENTED

A client employs a lawyer to sue for personal injuries suffered by his minor son, and the lawyer files suit in the district court in the name of the father, both individually and as next friend of his minor son, seeking recovery of a substantial sum for the minor and a lesser sum for the father's loss of his son's services. The lawyer then files in the county court an application for guardianship of the estate of the minor; and, at the lawyer's request, the county court appoints a bank as legal guardian. Such guardian is to be substituted for the next friend as plaintiff in the district-court case to prosecute the claim on behalf of the minor, and the father is to continue as a plaintiff in his own behalf. The guardian requests that the attorney elect to represent either the father or the minor's guardian, but not both. Would it be unethical for the lawyer to represent both the legal guardian and the father in the case without the consent of both?

23 Baylor L. Rev. 838 (1972)

According to Canon 6, it is unethical to represent conflicting interests, except by express consent of all concerned given after a full disclosure of the facts; and a lawyer represents conflicting interests when, in behalf of one client, it is his duty to contend for that which duty to another client requires him to oppose. Under the hypothetical facts stated, we cannot say that it would not become the lawyer's duty to contend, in behalf of the father, for that which his duty to the minor or his guardian would require him to oppose. Therefore, it is this committee's opinion that it would be unethical for the lawyer to represent both parties without the consent of both.

(The inquiry raises law questions which we consider to be outside the scope of this committee's functions, such as whether the subsequently-appointed guardian has an absolute right to be substituted for the next friend in pending litigation, and whether the guardian has the legal right to discharge the lawyer and employ counsel of its own choice to represent the minor's estate.) (9-0.)

CONFLICT OF INTEREST - REPRESENTING BOTH THE LEGAL GUARDIAN OF A MINOR AND THE MINOR'S FATHER
It is unethical for a lawyer to represent both the legal guardian of a minor's estate and the minor's father in a damage suit for personal injuries suffered by the minor and for the father's loss of the minor's services without the consent of both the guardian and the father.

Canon 6.

Tex. Comm. On Professional Ethics, Op. 314 (1966)