Can a lawyer who settled a mother's accident case then represent her child's injury claim from the same accident, when the mother may be a potential defendant?

Plain-English summary

A mother and her infant child were hurt in a one-car accident involving the mother's uninsured vehicle, which she was driving with a passenger holding the child. The lawyer obtained a substantial settlement for the mother's own injuries, and the mother now asks the lawyer to pursue the child's injury claim against the tortfeasor (the other driver), filing suit if needed. The committee was asked whether the lawyer may accept that engagement.

The committee separates the mother's three roles. As third-party payor, the lawyer must follow Rule 5.4(c) and pursue the child's interests, not the mother's, and cannot let the mother direct his professional judgment (LEO 1557). As next friend, the mother is not a client; a next friend does not form an attorney-client relationship merely by that status (LEO 1559), so Rule 1.7 (current-client conflicts) does not apply, only the child is a current client. As former client, the mother triggers Rule 1.9: her settled case and the child's case arise from the same accident and are substantially related. Whether the child's case is adverse to the mother turns on whether a non-frivolous claim exists against the mother as driver. If no non-frivolous claim could be filed against the mother (Rule 3.1), the child's case against only the other driver is not adverse and there is no Rule 1.9 conflict; if even a weak but non-frivolous claim against the mother exists, the representation is adverse and Rule 1.9 requires consent from both.

The committee adds that if the lawyer wants to limit the child's case to the other driver and not pursue a colorable claim against the mother, he must follow Rule 1.2: limiting the objectives requires the client's consent after consultation. And consent is a problem because the client is a minor, who cannot give the consent the Rules require (LEOs 786, 957, 1304, 1725). Whether a next friend (here, the potential defendant) or a substituted next friend or guardian ad litem can give valid consent for the child is a legal question outside the committee's purview.

Currency note

This opinion was issued in 2002. Virginia's conflict and scope-of-representation rules may have changed since. Verify against current rules before relying on any specific requirement mentioned here.

In practice

The opinion holds that, under the rules as they stood at the time, the conflict analysis turns on whether a non-frivolous claim exists against the mother as driver: no such claim means no Rule 1.9 conflict in suing only the other driver, while any colorable claim makes the child's case adverse to the former-client mother and requires consent. It also holds that limiting the case to the other driver needs the client's Rule 1.2 consent, and flags that the minor client cannot consent and the next friend's capacity to consent is an open legal question.

Common questions

Q: Is the mother a current client when she acts as next friend for her child?

A: No. The committee holds a next friend does not become a client by that status (LEO 1559), so only the child is a current client and Rule 1.7 does not apply.

Q: When does representing the child conflict with the lawyer's former representation of the mother?

A: Under Rule 1.9, when a non-frivolous claim exists against the mother as driver. The same-accident matters are substantially related, so any colorable claim against the mother makes the child's case adverse and requires consent.

Q: Can the lawyer just leave the mother out of the suit?

A: Only with consent. The committee holds that limiting the case to the other driver, when a colorable claim against the mother exists, requires the client's consent after consultation under Rule 1.2.

Q: Can a minor or the mother-as-next-friend give the required consent?

A: A minor cannot (LEOs 786, 957, 1304, 1725). Whether a next friend or guardian ad litem can give valid consent for the child is a legal question the committee declines to decide.

Background and rules framework

The opinion interprets Rule 1.9 (Model Rule 1.9; duties to a former client in a substantially related matter), Rule 1.2 (Model Rule 1.2(a)-(b); scope and limitation of representation), Rule 3.1 (Model Rule 3.1; non-frivolous claims), and Rule 5.4(c) (Model Rule 5.4(c); a third-party payor may not direct the lawyer's judgment). It applies prior opinions on next friends (LEO 1557, 1559) and minor consent (LEOs 786, 957, 1304, 1725).

Citations and references

Rules of Professional Conduct:

• Model Rule 1.9 / Virginia Rule 1.9(a) (former-client conflicts)
• Model Rule 1.2 / Virginia Rule 1.2(a)-(b) (scope of representation)
• Model Rule 3.1 / Virginia Rule 3.1 (non-frivolous claims)
• Model Rule 5.4(c) / Virginia Rule 5.4(c) (third-party payor and professional independence)

Other opinions cited:

• Virginia LEO 1557 and LEO 1559: a lawyer paid by a mother as next friend must pursue the child's interests; the next friend is not a client.
• Virginia LEOs 786, 957, 1304, 1725: a minor cannot give the consent the Rules require.

See also

• VA LEO 1769: Guardianship Conflict With Own Client
• VA LEO 1810: GAL Conflict, Ex-Partner Opposing
• VA LEO 1767: Prosecutor as Client of Defense Firm

Source

• Landing page: https://vsb.org/Site/about/rules-regulations/leo-opinions.aspx
• Original PDF: https://www.vsb.org/common/Uploaded%20files/LEOs/1762.pdf

Original opinion text

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

Committee Opinion
February 4, 2002
LEGAL ETHICS OPINION 1762

REPRESENTATION FOR CHILD’ S PERSONAL
INJURY CLAIM WHERE ATTORNEY
PREVIOUSLY REPRESENTED THE MOTHER

You have presented a hypothetical situation in which an unemployed Mother and her infant
child were involved in an automobile accident with an uninsured vehicle that was owned by
Mother. At the time of the accident and until settlement of her personal injury case, Mother was
without assets. Child’s father cannot be located and lives outside of the United States. Child has
no other relatives in the United States who have expressed any interest in her.
The mother was operating her car with Passenger in the front seat, who was holding Child in
her lap. An accident occurred injuring Mother, Passenger, and Child. Mother retained Lawyer to
represent her, suit was filed and Lawyer obtained a substantial settlement for Mother for her
injuries before the trial date. Now that Mother has settled her case against Tortfeasor, Mother
has requested Lawyer to present Mother’s claim on behalf of and for the benefit of Child to
Tortfeasor’s insurer. She wants Lawyer to file suit for her on Child’s behalf if necessary.
Under the facts you have presented, you have asked the committee to opine as to whether a
Lawyer may ethically accept employment by Mother to recover funds for Child’s personal injury
claim against Tortfeasor.
The appropriate and controlling disciplinary rules relative to your inquiry are 1.2(a) and (b),
1.9(a), 3.1, and 5.4(c):
RULE 1.2

Scope of Representation

(a) A lawyer shall abide by a client's decisions concerning the objectives of
representation, subject to paragraphs (b), (c), and (d), and shall consult with the client as
to the means by which they are to be pursued. A lawyer shall abide by a client's decision,
after consultation with the lawyer, whether to accept an offer of settlement of a matter. In
a criminal case, the lawyer shall abide by the client's decision, after consultation with the
lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will
testify.
(b) A lawyer may limit the objectives of the representation if the client consents after
consultation.
RULE 1.9

Conflict of Interest: Former Client

(a) A lawyer who has formerly represented a client in a matter shall not thereafter
represent another person in the same or a substantially related matter in which that
person's interests are materially adverse to the interests of the former client unless both
the present and former client consent after consultation.
RULE 3.1

Meritorious Claims And Contentions

Committee Opinion
February 4, 2002
A lawyer shall not bring or defend a proceeding, or assert or controvert an issue
therein, unless there is a basis for doing so that is not frivolous, which includes a good
faith argument for an extension, modification or reversal of existing law. A lawyer for
the defendant in a criminal proceeding, or the respondent in a proceeding that could result
in incarceration, may nevertheless so defend the proceeding as to require that every
element of the case be established.
RULE 5.4

Professional Independence Of A Lawyer

(c) A lawyer shall not permit a person who recommends, employs, or pays the lawyer
to render legal services for another to direct or regulate the lawyer's professional
judgment in rendering such legal services.
The fundamental question raised by your hypothetical is whether it would be a conflict of
interest for the attorney to represent the child in this matter, and if so, is there a way to cure that
conflict.
Regarding the existence of a possible conflict of interest, three roles of the mother in this
situation need review: her role as third party payor for the child’s legal expenses, as next friend in
the child’s case, and her role as former client of the attorney.
In considering her role as third party payor, the attorney must be sure to follow the
requirements of Rule 5.4(c) for an attorney paid by someone other than the actual client. In
applying those requirements to a mother serving as next friend for her child who is paying the
attorney’s legal fee, this committee noted in a prior opinion that the lawyer needs to pursue the
objectives and interests of the child, not those of the mother. LEO#1557. The lawyer should not
allow this mother to “direct or regulate the lawyer’s professional judgment in rendering such
legal services.” Rule 5.4(c).
In considering her role as next friend, this attorney, again, needs to be distinguish between the
interests of the mother and those of the child. As explained in LEO #1559, an attorney dealing
with a mother as next friend for a child does not represent the mother; she is not in an
attorney/client relationship with the attorney due solely to her status as next friend. Accordingly,
in determining whether a conflict of interest arises for this attorney in representing the child in
this matter, Rule 1.7 regarding conflicts between the interests of current clients is not applicable.
Only the child would be a current client; not the mother.
In considering the mother’s role as former client, the attorney must review the matter in light of
Rule 1.9, regarding conflicts between the interests of former and current clients. That rule
specifies that an attorney, in representation of a current client, may not be adverse to a former
client in a substantially related matter, unless the former client and the new client consent to that
new representation. As the child’s case involves a personal injury suit stemming from the same
accident as the mother’s personal injury suit, the committee opines that the two matters are
substantially related. The mother is a former client from a substantially related matter, but is the
child’s matter adverse to the mother? The facts of the hypothetical suggest that the child’s
interest in the matter may include an action against the mother as driver of the car. If there is

Committee Opinion
February 4, 2002
actually no claim that could be filed against the mother that would not be frivolous, then as the
attorney would be precluded from filing such an action under Rule 3.1, the child’s representation,
involving an action exclusively against the other driver, would not be adverse to the mother.
Under such facts, there would be no conflict under Rule 1.9. However, should there be a
nonfrivolous claim that could be filed against the mother, even if weak, the child’s representation
would be adverse to the mother. Under facts of that sort, the attorney would have a conflict
under Rule 1.9 were he to accept representation of the child in this matter. The committee notes
that a determination of the existence and/or merits of the child’s claim against the mother is a
fact-specific matter outside the purview of this committee. Under this analysis regarding Rule
1.9, should the attorney in fact have a conflict due to the child’s representation being adverse to
the mother, the only way to “cure” the conflict under that rule would be if the attorney could
obtain consent from the mother and the child regarding the representation.
The committee notes that your hypothetical suggests the possibility that the attorney may want
to accept the child’s case, that it may include a strong action against the other driver and a weak
action against the mother, and that the attorney would like not to pursue the action against the
mother for strategic reasons. In representing the child, should the attorney decide not to pursue
the claim against the mother, the committee cautions that the attorney must follow the dictates of
Rule 1.2, regarding the scope of representation. That rule contemplates that certain major
decisions can not be made by the attorney alone; the attorney must abide by the client’s
preference in such matters. The rule does contemplate that there may be times when the
representation of a client may be properly limited; specifically, the rule requires that a “lawyer
may limit the objectives of the representation if the client consents after consultation.” Thus, in
the present instance, if in fact there is a colorable claim to be made against the mother, the
attorney could only limit the representation to an action against the other driver with the client’s
consent after consultation.
An additional wrinkle for the attorney in this hypothetical regards his ability to obtain client
consent, should he in fact need it under either Rule 1.9 or Rule 1.2, as outlined above. The client
in this hypothetical is a minor. This committee has consistently opined that a minor cannot
provide the consent required by provisions of the Rules of Professional Conduct. See,
LEOs##786, 957, 786, 1304, &1725. Thus, this attorney may not obtain any required consent
from the child.
The hypothetical raises the possibility of the attorney trying to obtain the child’s consent, not
directly from the child but from the mother, as next friend. Whether a next friend, either this
particular next friend, who also happens to be the potential defendant, or any other substituted
next friend, such as a court-appointed guardian ad litem, can provide valid consent on behalf of
the child is a legal question outside the purview of this committee.
This opinion is advisory only, based only on the facts you presented and not binding on any
court or tribunal.