Opinion #154. Representing Child Where Parents May Have Adverse Interest

Issued by the Professional Ethics Commission

Date Issued: November 12, 1996

The Commission has been asked a series of questions arising out of instances wherein a lawyer is asked by the parents to represent an injured minor and in some such instances the parents have an independent claim.

Questions

(1) A lawyer has a contingent fee agreement with the parents of a seventeen year old minor involved in an automobile accident. After the minor turns eighteen, the minor asks to settle the case over the parents’ objections and further asks that his parents not be informed of the settlement. The minor is also opposed to reimbursement to the parents for medical bills incurred on his behalf. May the lawyer comply with the wishes of the minor?

(2) Assume that the father of the minor child was the significantly negligent driver (the driver of the other vehicle also being negligent) of the vehicle in which the minor as a passenger was seriously injured. Assume further that the father has no claim, is underinsured, has personal assets, and any suit against him involving this accident would put personal assets at risk. Assume that the lawyer ascertained the above facts during an initial interview. In the foregoing circumstances, can the lawyer accept representation on behalf of the minor child with either parent acting as next friend, or is a guardian ad litem required?

(3) Assume that a lawyer, pursuant to a contingent fee agreement, is representing the minor through the father as next friend. Assume that the child has incurred medical bills in the amount of $5,000. Prior to settlement or judgment, may the lawyer, at father’s request, ask the insurance company to disburse the $5,000 med pay coverage to the father for purposes other than payment of the medical bills?

(4) Assume a parent instructs the lawyer to settle the case for a figure significantly less than the lawyer’s evaluation of its worth, may the lawyer settle the case as instructed?

(5) Assume the lawyer has negotiated a settlement of the lawsuit and is preparing the paperwork necessary to obtain court approval. Assume the parents of the minor ask the lawyer to seek reimbursement to them from the settlement proceeds for items which may not be appropriate. May the lawyer present the parents’ requests to the Court in the paperwork which is filed? May the lawyer advocate the parents’ requests in oral argument to the court? Must the lawyer withdraw from the case?

Discussion

At the outset we direct our discussion to the applicability of Rule 3.4(c) (2) which provides in pertinent part:

...if a conflict of interest exists, a lawyer may not undertake or continue simultaneous representation of more than one client except with the informed consent of each affected client to representation of the others... Simultaneous representation in the same matter or substantially related matters is undertaken subject to the following additional conditions:

(i) The lawyer must reasonably believe (A) that each client will be able to make adequately informed decisions, and (B) that a disinterested lawyer would conclude that the risk of inadequate representation is not substantial, considering any special circumstances affecting the lawyer’s ability to provide adequate representation of each client, such as the fact that the clients may seek incompatible results or pursue mutually disadvantageous tactics, or that their adverse interests may outweigh their common interests.

and the potential applicability of Rule 3.4(c)(3) which provides in relevant part:

A lawyer who represents two or more clients shall not make or participate in the making of an aggregate settlement of the claims of ... those clients ... unless each client has consented after being advised of the existence and nature of all the claims ... and of the share of each person and the total amount of the settlement of a civil matter ...

We also refer the lawyer to the definition and considerations laid out in Rule 3.4(b)(l) concerning conflict of interest and section (b) (2) regarding informed consent.

In some situations, the lawyer’s only client is the child, and the parent’s role is to speak for and act on behalf of the minor child. The lawyer thus looks to the parent as the authorized representative of his client until the lawyer reasonably concludes that the representative is not in fact motivated by the interests of the client. The more difficult issue arises when the parent might reasonably be a party—as a claimant or defendant in the same matter.

In light of the rules, it is apparent that the lawyer must make a decision at the commencement of the matter as to whether a conflict exists and if so, the lawyer must then determine (1) whether there is a substantial risk of inadequate representation and, if not, (2) whether he has the informed consent of both clients. We think it more than likely that an inherent conflict will be found to exist in these types of cases where both parent and child have claims, however, we leave that determination to the lawyer to resolve on a case by case basis in light of the applicable facts.

If the lawyer ascertains that a conflict exists, he must then obtain the consent of both clients. In these instances, the consent issue becomes a difficult one because even though the parent may consent on his own behalf, the minor is incapable of consenting independently of his parent absent a guardian. Accordingly, the lawyer must assess whether either parent may consent on behalf of the minor child.

With the above rules in mind, we adopt the presumption that we believe is most likely to best serve minors, parents and society as a whole. A lawyer is entitled to presume that the minor’s parent is acting in the best interest of the minor even though the parent may have a claim of his own either directly or indirectly This presumption may be relied upon by the lawyer until such time as the lawyer has a reasonable basis to believe that the parent is no longer putting the interests of the child first. This presumption is fundamental to the legal relationship between parents and children in our society. Failure to acknowledge this presumption would impose unacceptable costs on the resolution of disputes including the expense of obtaining and paying a guardian ad litem to act on behalf of the minor throughout the case, a step that will usually disrupt family relationships and should not be required unless necessary to serve the interest of the child.

While we adopt the presumption noted above, we are mindful of potential situations that might arise in which it would not be appropriate for the lawyer to engage in representation of both parties. We suggest and strongly encourage the lawyer to examine the circumstances of each case by assessing at a minimum at the outset the applicable facts and information such as the nature of the relationship between the parent and child, the value of each client’s respective claims, the age of the child, the amount of any available insurance proceeds, the seriousness of the child’s injuries, the type of reimbursement the parent is seeking, the involvement, if any, of either parent in causing the child’s injuries, liability, and the respective positions of the parties. We recognize that these will be difficult issues to assess in many of these cases and perhaps will need to be reassessed frequently throughout the course of the representation if representation is commenced.[1]

In the event the lawyer concludes that he cannot accept consent of the parent on behalf of the minor child, it would seem necessary to seek appointment of a guardian ad litem for the minor child pursuant to Rule 17A of the Maine Rules of Civil Procedure.

We also caution lawyers in these situations to consider carefully the implications of the recent Law Court decision in LaBier v. Pelletier, 665 A.2d 1013 (Me. 1995) wherein the Law Court rejected the doctrine of imputed parental negligence. In so doing, the Law Court made it possible for an injured child to recover despite the negligence of his parent. LaBier v. Pelletier, supra at 1015. Further consideration should be given to the earlier Law Court decision in Black v. Solmitz, 409 A.2d 634 (Me. 1979) in which the Law Court held that children may sue their parents. Black v. Solmitz, supra at 635.

Question 1

Addressing the issue of whether the lawyer may comply with the wishes of the minor, it is clear that once the minor attains the age of eighteen he is able to direct the course of his own litigation including settlement. Nonetheless, on the facts presented, it is inferred that the parents have an independent claim for reimbursement of medical bills incurred on behalf of the minor child. The minor’s request to settle the case without notice or reimbursement to the parents on their claim creates a conflict between the two clients and the lawyer must withdraw from joint representation. Continued representation of either client, without the consent of the other, would violate Rule 3.4(b)(l) and (c)(2)(iii).

Question 2

Turning next to the issues presented in the second question, consistent with the presumption we have adopted, the lawyer may presume a guardian ad litem is not necessary. We note however that as the combination of parental liability and financial exposure grow, the circumstances outlined pose a high probability of inconsistent interests so as to weaken the presumption such that representation can only be sustained if there are significant other factors which support it. Accordingly, the lawyer must assess the case, determine whether either parent will act with the best interest of the minor paramount, and then only proceed upon a clear understanding with the clients as to the course of the representation.[2] In this situation, the parent needs to be clearly informed of the potential for suit against him and what will happen to the representation should that circumstance arise.

Question 3

Initially we restate the principle stated above that the lawyer may rely on the presumption that the parent, as next friend of the child, is acting in the best interests of the child, unless the lawyer has a reasonable basis to believe otherwise. If the ultimate recovery to the minor child would be affected or in any way compromised by the parent’s instructions, we conclude that it would be improper for the lawyer to seek a prepayment from the insurance company in light of his knowledge of its intended use by the father. If so, and if the parent persists, then as a result of the father’s request, the lawyer now has to reconsider his earlier decision that he could adequately represent both clients. The lawyer must consider whether he continues to have a reasonable basis to believe that the parent is putting the best interests of the minor first and whether the presumption set forth above continues to apply. If the lawyer so concludes, then the lawyer must withdraw.

Question 4

We assume in responding to this question that the parent does not have an independent claim and that the lawyer is representing one client—the minor child. With that assumption in mind, we believe the lawyer has an obligation to fully and completely inform the parent of his evaluation of the case, including at a minimum such things as the reasons underlying his evaluation, his thoughts with regard to further discovery, the potential for success of further settlement negotiations, the chances of obtaining a judgment if the matter is tried and the ability to recover any judgment. If after such disclosure the parent still wishes to settle the case, the lawyer should consider whether he still has a reasonable basis to accept the parent’s consent on behalf of the minor. If the lawyer believes the parent is putting the interests of the minor first, then the lawyer should settle the case, while at the same time indicating to the parent that should inquiry be made he will advise the court that the amount of the settlement may not reflect the defendant’s probable liability. The lawyer should also advise the parent that he should not waive his right to attend the Rule 17A hearing on the application for approval but rather should appear to present his views on the settlement to the judge.

Question 5

If the ultimate recovery to the minor child would be affected or in any way compromised by complying with the request of the parents, we conclude that it would be improper for the lawyer to present the request to the court in writing or in oral argument. If the minor’s recovery would be affected or compromised and the parent continues to insist on his request, then, as in our response to question three, the lawyer must then reconsider his earlier decision that he could adequately represent both clients. After going through the analysis suggested in our response to question three, the lawyer may well conclude that he must withdraw from representation.


Footnotes

[1] We think the prudent course of action in each of these cases where the lawyer undertakes representation is that an engagement letter outlining the representation and any limitations on the representation be sent to the parent at the outset of the case. Such a letter should note that the lawyer enters into the representation based upon the presumption that the parent is acting in the best interest of the minor child.

[2] See rule 17-A, Maine Rules of Civil Procedure.


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